IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:2754/2008 Decided on:18.4.2009 Ram Swarup. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes. For the petitioner : Mr. Adarsh Vashistha, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Vikas Rathore, Deputy Advocate General. Rajiv Sharma, J. The disciplinary proceedings were initiated against the petitioner. He did not file any reply to the charge sheet. The Inquiry Officer was appointed. He submitted the report to the disciplinary authority on 14.7.1994. The disciplinary authority issued a show cause notice to the petitioner on 3.8.1994. He submitted the reply to the same on 16.8.1994. The disciplinary authority imposed the penalty of dismissal from service upon the petitioner on 3.9.1994. He filed an appeal on 17.1.1995 against the office order dated 3.9.1994. The same was rejected by the Deputy Inspector General of Police on 18.2.1995. He filed review-cum-revision 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 petition in the month of March, 1995. The same was rejected by the Director General of Police on 11.7.1995. Mr. Adarsh Vashistha, Advocate has strenuously argued that the dismissal of the petitioner from service is in accordance with law. He further argued that the copy of the inquiry report dated 14.7.1994 has not been supplied to the delinquent before the imposition of penalty on 3.9.1994. He lastly contended that the medical certificates furnished by his client have not been taken into consideration by the Appellate Authority of the period he remained absent. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the orders passed by the Disciplinary Authority and the Appellate Authority dated 3.9.1994, 18.2.1995 and 11.7.1995. I have heard the learned counsel for the parties and perused the record carefully. The petitioner was charge-sheeted by the Disciplinary Authority. He did not file any reply to the charge-sheet. He was called upon by the Inquiry officer to join the proceedings and to furnish the list of witnesses etc. He neither filed the list of witnesses nor was any reply submitted by him. He remained absent on 14.12.1992, 10.1.1993, 25.8.1993 to 5.10.1993, 14.1.1993, 6.10.1993, 8.10.1993 to 12.10.1993, 15.10.1993 to 30.10.1993, 5.11.1993 to 23.12.1993, 24.12.1993 to 29.12.1993, 31.12.1993 to 20.1.1994 and 1.2.1994 to 3.2.1994. He was proceeded exparte. The Inquiry Officer submitted the report on 14.7.1994 to the Disciplinary Authority. He had served the petitioner with a show cause notice on 3.8.1994. He filed reply to the same on 16.8.1994. A bare perusal of the reply submitted by the petitioner reveals that he has only highlighted therein that the Inquiry Officer was biased towards him. He has not stated anywhere that the inquiry has not been conducted in 3 accordance with law nor he has pleaded for the supply of the copy of the inquiry report. The Disciplinary Authority has passed reasoned order on 3.9.1994. His appeal was rejected by the Deputy Inspector General of Police on 18.2.1994. He has not taken the plea of non supply of the copy of the inquiry report to him before the imposition of penalty dated 3.9.1994. The Disciplinary Authority has taken up all the grounds mentioned in the appeal point-wise. The order passed by the Appellate Authority is self-contained and speaking/reasoned order. He has absented himself from Police Lines or deserted his place of duty on 11 occasions as recorded by the Appellate Authority. He was habitual absentee. He had not participated in the inquiry though ample opportunities were granted to him to associate in the inquiry. The copy of charge-sheet was sent to him at his home address. He has not filed reply to the same. In fact, the show cause notice along with a copy of the inquiry report was delivered to him on 4.8.1994 as recorded in the order passed by the Appellate Authority. He has received the same. He has submitted the reply on 16.8.1994, as noticed above. In case he was aggrieved of the appointment of the Inquiry Officer, he should have taken appropriate steps in accordance with law assailing his appointment as Inquiry Officer. His submission that his medical certificates have not been taken into consideration during the course of inquiry merits rejection. He for the first time has gone to the Mental Hospital on 3.10.1994. The period of misconduct pertains to October, 1992 to February, 1994. He cannot be permitted to rely upon the certificate issued by the Tantrik. The review- cum-revision petition preferred by the petitioner has also been dealt with in accordance with law by the Director General of Police as is evident from the order dated 11.7.1995. The Director General of Police has mentioned in his order that the petitioner remained absent for 128 days and has not 4 given any explanation for his absence. Whatever explanations he has tendered were afterthought. The learned counsel appearing on behalf of the petitioner has also drawn the attention of the court to the certificates issued by Bhatia Hospital. These medical certificates cannot be treated as evidence. The petitioner has not even chosen to place these certificates on record during the course of inquiry proceedings. The petitioner has failed to point out any prejudice which may have been caused to him due to non-supply of the inquiry report before making up of the mind by the Disciplinary Authority. The Disciplinary Authority in fact had supplied the copy of the inquiry report on 4.8.1994 with notice. The endorsement made by the Disciplinary authority on the reply filed by the petitioner will have no bearing on the final imposition of penalty upon the petitioner. Their Lordships of the Hon’ble Supreme Court in Haryana Financial Corporation and another versus Kailash Chandra Ahuja, (2008) 9 SCC 31 have held that the failure to supply the report of the Inquiry Officer to the delinquent employee would not ipso facto result in proceedings being declared null and void and order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report has caused prejudice and resulted in miscarriage of justice. Their Lordships have held as under: “21. From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer’s report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee 5 would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside.” Their Lordships of the Hon’ble Supreme Court in State of Punjab and others versus Sukhwinder Singh, (2007) 10 SCC 511 have held that when a policeman repeatedly absents himself from duty, it cannot but reasonably be concluded that there is incorrigibility in his continued misconduct. In this case the Head Constable had remained absent for 64 days and 14 hours and before that also he was indulging in similar absenteeism. Their Lordships have upheld his removal. Their Lordships have further held that paramount public interest must overweigh private considerations. Their Lordships have set aside the judgment of the Punjab and Haryana High Court. Their Lordships have held as under: “5. The High Court was right in noting that the respondent was a member of a disciplined force and that absence from duty was unbecoming of a member of such force. It was in that light that the High Court should have looked at the repeated acts of the respondent's absence from duty. The fact that the respondent is a member of the Scheduled Castes is neither here nor there for the purposes of considering whether or not he is guilty of misconduct and breach of discipline, nor the fact that he had gone to give his pay to his mother and was detained on account of her illness. It is necessary that members of the police forces should attend the duties which they have been allocated and not absent themselves. This is a paramount public interest that must overweigh private considerations. The High Court was, therefore, in patent error in looking benignly at the numerous acts of absence of the respondent. 6 6. That the order of dismissal did not use the "mantra" of "gravest act of misconduct" is not determinative. The substance of that conclusion is to be found in that order. When a policeman is repeatedly absent from duty, it cannot but be reasonably concluded that there is incorrigibility in his continued misconduct.” In view of the aforesaid reasoning and the definitive law as cited hereinabove, there is no merit in the petition and the same is dismissed. There will, however, be no order as to costs. 18.4.2009 (Rajiv Sharma ), J. *awasthi*