RSA No.3261 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3261 of 2007 Date of Decision:18.05.2009 Rajwant Singh ....appellant Versus State of Punjab & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.R.S.Bajaj,Advocate for the appellant Mr.Rajesh Garg, Additional Advocate General, Punjab for the respondents **** RAKESH KUMAR GARG J. This is plaintiff's second appeal challenging the judgment of the Lower Appellate Court whereby appeal filed by the defendants- respondents was accepted and judgment and decree of the trial Court was set aside which resulted into dismissal of the suit filed by the plaintiff- respondent. Briefly stated, the plaintiff-appellant was recruited as Constable with the respondent-Department on 29.03.1991 and was posted at Police Post Sukhe De Behak, Kapurthala in September 1992. It is the case of the plaintiff that on 07.09.1992 he suddenly fell ill. Since there was no provision for medical treatment at the police post, he remained under the treatment of one Dr.Kamal Kumar Sidhu, MBBS of Old Jawahar Nagar,Jalandhar during the period 07.09.1992 to 24.10.1992. The doctor advised him complete bed rest during this period. He reported back for duty on 24.10.1992. Unfortunately, there was a relapse and the plaintiff was again taken ill on 26.10.1992. The plaintiff claimed that during the period 26.10.1992 to 14.03.1993 he was completely bedridden. Since he RSA No.3261 of 2007 2 became fit, he reported back for duty. He gave intimation regarding his illness to the concerned authority and also sent application for grant of leave. However, orders passed on his leave application were never conveyed to him. The defendants treated the plaintiff as absent from duty during the period from 07.09.1992 to 24.10.1992 and from 26.10.1992 to 14.03.1993. A departmental enquiry was conducted against the plaintiff and he was found guilty by the Enquiry Officer. The medical evidence produced by him was disbelieved by the Enquiry Officer on the ground that he should have got his leave sanctioned from the competent authority. On the basis of the enquiry report, the Senior Superintendent of Police, Kapurthala issued a show cause notice to the plaintiff proposing punishment of dismissal from service. He submitted reply to the show cause notice claiming innocence. However, vide order dated 19.08.1993, the SSP Kapurthala ordered dismissal of the plaintiff and further ordered that absence period of 196 days be treated as non-duty period and without pay. Plaintiff filed an appeal against the order dated 19.08.1993 but the same was rejected by the Deputy Inspector General of Police, Jalandhar Range, Jalandhar Cantt, vide order dated 09.02.1994. The DIG, Jalandhar Range, Jalandhar Cantt, did not afford any opportunity of personal hearing to the plaintiff before deciding his appeal. Not satisfied with the aforesaid orders, the plaintiff filed revision which was rejected by the Inspector General of Police, Punjab, Chandigarh, vide order dated 26.06.1995. The plaintiff claimed that the orders of the authorities dismissing him from service and treating the period of 196 days of his alleged absence as non-duty period and without pay were illegal, void and against the provisions of law and therefore were not binding on the plaintiff and claimed that the same are liable to be set aside. Hence, this suit for declaration to the effect that orders passed by the SSP Kapurthala, DIG RSA No.3261 of 2007 3 Jalandhar Range, Jalandhar Cantt and Inspector General of Police, Chandigarh, whereby the plaintiff was dismissed from service and period of 196 days of his alleged absence was treated as non-duty period are illegal and are liable to be set aside. The plaintiff claimed that he is entitled to the declaration that he be continued as Constable as before 19.08.1993 with all rights, privileges and emoluments attached to that post. Upon notice, the defendants appeared and filed written statement raising various preliminary objections. On merits, the defendants admitted that the plaintiff was working as a Constable in the Police Department. It was denied that the plaintiff was ill during the period of absence and was bedridden and remained under treatment. It was further submitted that he remained absent from duty without leave or permission while being posted on Special Operation Duty at Police Post Sukhe De Behak near village Booh in Mand area of Beas River, District Kapurthala. It was claimed that period of absence from duty of the plaintiff was willful. The medical record produced by the plaintiff during the departmental enquiry was not found genuine and therefore the same was disbelieved. It was claimed by the defendants that the plaintiff should have appeared before the higher authorities for sanction of leave as he was a member of disciplined Force. It was further claimed that after the consideration of the reply of the plaintiff to the show cause notice the order of punishment was passed in accordance with law. It was further claimed that the appeal and revisional orders were passed rightly. On these averments, the dismissal of the suit was prayed for. Replication was filed in which the averments made in the plaint were reiterated while those made in the written statement were controverted. RSA No.3261 of 2007 4 On the basis of the pleadings of the parties the following issues were framed: 1. Whether the order dated 26.06.1995 is illegal, null and void? If so, its effect? OPP 2. Whether the plaintiff is entitled for declaration as prayed for?OPP 3. Whether notice u/s 80 CPC is not legal and valid? OPD 4. Whether the plaintiff has no locus standi to file the present suit?OPD 5. Whether the suit is within limitation?OPP 6. Relief. After going through the evidence so produced on record and hearing learned counsel for the plaintiff and Government Pleader for the defendants, the trial Court decided all the issues in favour of the plaintiff and accordingly decreed the suit, vide his aforesaid judgment and decree. Feeling aggrieved therefrom, the defendants filed an appeal before the Lower Appellate Court which was accepted vide impugned judgment and decree passed by District Judge, Jalandhar. While accepting the appeal the Lower Appellate Court it held that the plaintiff absented himself from duty without getting his leave sanctioned nor he filed any medical certificate before the medical authorities. It was further held that the long absence from duty by the appellant amounts to gravest misconduct which justifies the dismissal of the plaintiff from service. Not satisfied with the impugned judgment and decree the plaintiff has filed the instant appeal. Learned counsel for the appellant has vehemently argued that the order of termination passed against the appellant is liable to be set aside as the appellant was not supplied documents relied upon by the department during the course of enquiry by the Enquiry Officer which has RSA No.3261 of 2007 5 vitiated the enquiry and the consequences flowing therefrom. He further argued that mere absence of duty on account of illness in the facts and circumstances of the present case does not amount to gravest act of misconduct inviting dismissal of service under Rule 16.(2) of the Punjab Police Rules and thus on the basis of the aforesaid arguments learned counsel for the appellant argued that the following substantial questions of law arise in this appeal: 1. Whether non-supply of documents by the Inquiry Officer during the course of inquiry vitiates the inquiry and the consequences flowing therefrom? 2. Whether mere absence from duty on account of illness in the facts and circumstances of the present case amounts to gravest act of misconduct? On the other hand, learned counsel for the respondents supported the findings of the Lower Appellate Court and argued that the appellant was put on a Special Operation Duty and therefore in the facts and circumstances of the case his absence from duty amounts to gravest act of misconduct justifying the dismissal from service. Learned counsel for the respondents also relied upon judgments of the Hon'ble Supreme Court in the case of “2005 (3) SCT 512 Rajesh Kumar versus State of Haryana” in support of his case. I have heard learned counsel for the parties. The argument raised by the counsel for the appellant that non-supply of documents by the Enquiry Officer during the course of enquiry had vitiated the proceedings and the consequences flowing therefrom, is without any basis. The Lower Appellate Court while deciding this appeal has recorded a finding that in this case, the enquiry officer had not relied upon any such previous record of the appellant while proving the charges against him and therefore the appellant was not required to be furnished with a copy of such record. RSA No.3261 of 2007 6 Even before this Court learned counsel for the appellant has failed to point out specific documents, non supply of which had vitiated the proceedings against the appellant. While dealing with this issue, the Lower Appellate Court observed as under: “One of the ground which weighed with the learned trial Court for declaring the impugned order as illegal is that the plaintiff was able to prove that the copies of document relied upon by the department were not supplied to him before proceedings of the departmental inquiry. In this case, the procedure as laid down in Rule 16.24 of the Rules was to be followed. In this case the Inquiry Officer had not relied upon any document. According to sub-Rule(vii) it is only when the officer passing the order of punishment proposed to take into consideration the adverse entries of the previous record of the police officer that he is to provide a reasonable opportunity to the defaulter to defend himself and to convey a copy or at least a gist of those entries to the defaulter and he is to be asked to give such explanation as he may deem fit. The punishing authority in this case had not taken into consideration the previous record of the plaintiff and as such he was not required to be furnished with a copy of those adverse entries. It was wrongly held by the learned trial Court that the non-furnishing of the documents vitiated the inquiry proceedings.” In view of the aforesaid factual position, the judgment cited as State of U.P. & Ors. Versus Ram Chandra Mangalik 2002(2)RSJ 224, relied upon by the learned counsel for the appellant is of no help to him. The next contention of the appellant that mere absence from duty on account of illness does not amount to gravest act of misconduct RSA No.3261 of 2007 7 attracting dismissal of the employee is also without any merit. While dealing with the aforesaid argument of the appellant the Lower Appellate Court observed as under: “The next question to be determined is whether this long absence from duty amounts to gravest misconduct or not. According to Rule 16.2 of the Rules dismissal shall be awarded only for gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. It was held in Jagbir Singh versus State of Haryana (2003 (3) SCT 196) that a single instance of absence can be gravest misconduct in police service. In Rajesh Kumar versus State of Haryana (2005 (3) SCT 512), the Division Bench of our own Hon'ble High Court was dealing with same question. It was held therein that unauthorized absence of 121 days of police man is a gravest misconduct. In the present case, the plaintiff without obtaining any leave remained absence from his duty for a period of 196 days 5 hours and 50 minutes. This unauthorized absence is an act of gravest misconduct, justifying the dismissal of the plaintiff under Rule 16.2.” Learned counsel appearing on behalf of the appellant could not dispute the statement of law as settled in the aforesaid judgments referred to above. Undisputedly, the plaintiff remained absent from his duty without obtaining any leave for a period of 196 days. Keeping in view the exigency of service and unauthorized absence of the appellant, the Punishing Authority was justified in holding that absence of the appellant constituted Gravest Act of misconduct justifying his dismissal under Rule RSA No.3261 of 2007 8 16.2 of the Punjab Police Rules. 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 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 the 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. The judgment of the Hon'ble Supreme Court in Bhagwan Lal Arya versus The Commissioner RSA No.3261 of 2007 9 of Police, Delhi and anr. AIR 2004 SC 2131, is distinguishable on the facts of the case as in that case the employee remained under treatment of government doctors and sent applications for leave on medical grounds supported with the medical certificate from competent medical authorities in accordance with the Leave Rules and the competent police authorities passed an order sanctioning leave without pay for the period of his illness as no other leave was due to him. Thus, I find no merit in the arguments raised by the appellant. No substantial question of law arises in this appeal. Dismissed. (RAKESH KUMAR GARG) JUDGE 18.05.2009 neenu