C.W.P.No.11372 of 1997(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.11372 of 1997(O&M) Date of decision : 09.12.2011 Ex. Const. Rohtash ....Petitioner Versus State of Haryana and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present : Mr. Amit Rao, Advocatr for Mr. S.K.Sharma, Advocate for the petitioner Ms. Maloo Chahal, DAG, Haryana MAHESH GROVER, J. The petitioner by way of this writ petition impugns the orders dated 23.11.95 (Annexure P-7), 30.8.96 (Annexure P-9) and 22.2.97 (Annexure P-11). The petitioner is a member of police force and was serving as a Constable faced the following charges:- “That you Constable Rohtash Kumar No.142 when were posted in Police Lines and Police Station Jind you have been absented yourself intentionally without any leave and without any permission from the police department and without any information. 1. Vide Rapat No. 46 dated 5.7.94 you came present on 7.7.94 vide Rapat no. 15 after remaining absent for 1 day and 17 hours intentionally and wilfully from your duty. 2. Vide Rapat No. 36 dated 12.7.94 you went on two days C.L and did not present back in time and came on 19.7.94 after C.W.P.No.11372 of 1997(O&M) 2 remaining absent for 3 days 21 hours 30 minutes vide Rapat no.7. 3. That on 6.8.94 when you were posted to Guard duty at DC residence and you absented yourself without information and you came present vide Rapat No. 13 dated 15.8.95 after remaining absent for 9 days. 4. That on 30.10.94 you went on 5 days CL but came back vide Rapat no. 27 dated 11.11.94 after remaining absent for 6 days 4 hours and five minutes. 5. That when you were posted at P.S City Jind on 21.1.95 you left your duty which was with SDO and came back after remaining absent for 13 days. 6. That you went on one day CL on 7.4.95 from police Lines Jind and did not came back in time and presented yourself after 19 days absence. In this way you Constable Rohtash Kumar no. 142/Jind in addition to above 6 times absence previously also you had remained absent time and again from your duty. i) on 15.2.91 to 16.2.91 you remained absent for 18 hours and 5 minutes and punishment was imposed for 5 days P.D and one day CL was adjusted. ii) from 11.4.92 to 20.4.92 you remained absent for 10 days L.K.D alongwith warning was imposed. iii) vide Ob. No. 3/93 from 6.8.92 to 19.8.92 for remaining 13 days leave of kind due was sanctioned. iv) Vide Ob. No. 84/94 from 2.11.93 to 20.11.93 for 17 days C.W.P.No.11372 of 1997(O&M) 3 22 hours and 30 minutes absence 17 days LWP was sanctioned.” In the departmental inquiry the charges were proved and the petitioner was dismissed from the service and the order of disciplinary authority was approvingly viewed by the appellate and revisional authorities. Learned counsel for the petitioner contends that the punishment awarded to him is disproportionate to the mis-conduct which cannot be construed to be gravest mis-conduct so as to invite dismissal. He further submits that he has served the department for around 13 years and even if the petitioner was to be dismissed from service, his previous service rendered by him should have been taken into account so that atleast he may have got pension on proportionate basis. The respondents have denied the claim of the petitioner and have stated that the petitioner was repeatedly awarded punishments for absence from duty. They have stated in their reply that on 15.2.91- and 16.2.91, the petitioner was absent for 18 hours and 5 minutes and a punishment was imposed upon him. Thereafter, from 11.4.92 to 20.4.92 the petitioner again absented for which warning was given to him, then from 6.8.92 to 19.8.92 he remained absent for 13 days which was converted into the leave of the kind due. Subsequently, from 2.11.93 to 20.1.93 the petitioner again absented himself for 17 days and 22 hours and 30 minutes for which 17 days leave without pay was sanctioned. Despite aforesaid when the respondents were continuously taking a lenient view of the absence of the petitioner he did not reform himself and from July 94 to August 95 within a span of 9 months, he C.W.P.No.11372 of 1997(O&M) 4 absented himself on 6 occasions as per the details given below, it was then that the regular inquiry was conducted and he was awarded punishment of dismissal.:- “1. Vide Rapat No. 46 dated 5.7.94 the petitioner came present on 7.7.94 vide Rapat no. 15 after remaining absent for 1 day and 17 hours intentionally and wilfully from his duty. 2. Vide Rapat No. 36 dated 12.7.94 the petitioner went on two days CL and did not present back in time and came on 19.7.94 after remaining absent for 3 days 21 hours 30 minutes vide Rapat no.7. 3. That on 6.8.94 when the petitioner were posted to Guard duty at DC Residence and the petitioner absented himself without information and he came present vide Rapat No. 13 dated 15.8.95 after remaining absent for 9 days. 4. That on 30.10.94 the petitioner went on 5 days CL but came back vide Rapat no. 27 dated 11.11.94 after remaining absent for 6 days 4 hours and five minutes. 5. That when the petitioner was posted at P.S.City Jind on 21.1.95 the petitioner left his duty which was with SDO and came back after remaining absent for 13 days. 6. That the petitioner went on one day CL on 7.4.95 from Police Lines, Jind and did not came back in time and presented himself after 19 days absence.” On due consideration of the matter, I am of the considered opinion that the conduct of the respondents in passing the impugned orders cannot be termed to be erroneous as the petitioner by his own conduct has C.W.P.No.11372 of 1997(O&M) 5 rendered himself unfit to be a member of police force and an officer who is incorrigible and unfit for holding the assignment. Repeated absence from duty in a disciplined force is to be construed as a gravest act of mis-conduct in terms of Rule 16.24(1) (2) and (9). There is thus no ambiguity or illegality in the orders passed by the respondents. No violation of any rule in the impugned orders of dismissal have been shown by the learned counsel for the petitioner and neither has any violation of principles of natural justice been elaborated. In this view of the matter, the instant petition is held to be devoid of any merit. At this stage, learned counsel for the petitioner contends that considering the fact that he has put in 13 years service, the respondents ought to have explored the possibility of granting pension to him as he has rendered more than 10 years service which is the qualifying service. This aspect of the matter merits consideration. Before passing the impugned orders, the respondents did not explore the possibility of granting pension to the petitioner by considering the service that he has rendered with them. Consequently the matter is remitted back to the respondents to pass an order to this limited extent. It is directed that they shall take into consideration the prayer of the petitioner and the service rendered by him and take a decision for grant of pension in case he otherwise fulfills all other conditions. Disposed of. December 9, 2011 (Mahesh Grover) rekha Judge