R.S.A. No. 2461 of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 2461 of 1996 Date of decision: 26-5-2009 State of Punjab and another … Appellants versus Sakattar Singh, Ex.constable … Respondent CORAM: THE HON’BLE MR. JUSTICE ARVIND KUMAR Present: Mr. B.S.Sra, DAG Punjab, for the appellant Mr. GPS Bal, Advocate, for the respondent … ARVIND KUMAR, J: The present second appeal is by the defendant-State of Punjab against the judgment and decree of the Courts below whereby the suit of the plaintiff for declaration has been decreed. As per case set out by the plaintiff in his plaint, he joined as Constable in the police department on 15.10.1987. He worked diligently and never gave any chance of complaint to his senior officers. In December, 1988, when he was posted in Police Lines, Kapurthala, he proceeded on 3 days' sanctioned leave from 22.12.1988 and was to resume duty on 26.12.1988 but could not do so on account of ailment beyond his control. He stated that despite information to the Authorities, his absence was recorded on 26.12.1988 in the DDR. When the plaintiff appeared in the Lines and wrote DDR on 11.12.1989, he was proceeded against departmentally on the allegation of deliberate absence for a period of 99 days. According to him, thereafter, an enquiry was conducted and consequently, vide order dated 1.10.1990 he was ordered to be dismissed from service. Hence, the suit. Upon notice of the suit, defendants in their written statement defended their action in passing the order of dismissal dated 1.10.1990. Trial Court upon appreciation of evidence adduced on record, vide judgment and decree dated 19.7.1994 R.S.A. No. 2461 of 1996 2 decreed the suit of the plaintiff for declaration to the effect that order dated 1.10.1990 passed by the Senior Superintendent of Police, Jalandhar, dismissing the plaintiff from service was declared illegal, null and void and not binding on the rights of the plaintiff and the plaintiff continues to be a Constable as before 1.10.1990. Feeling aggrieved, the defendants preferred an appeal which came to be dismissed vide judgment and decreee dated 22.3.1996 passed by the first appellate Court. Hence, the second appeal by the defendants. 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). 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 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 incorrigible and unfit for police service. Respondent-plaintiff in the instant case had remained absent with effect from 26.12.1988 after having availed leave and resumed duties on 11.2.1989. He thus, remained absent from 26.12.1988 to 11.2.1989 i.e. for about 47 days and then from 17.3.1989 to 9.5.1989 i.e. for about 52 days, and thus, totalling about 99 days. It is not in dispute that during enquiry, he had examined the doctors under whom he remained under treatment for mental ailment. But he was required to get the medical leave duly sanctioned from the competent Authority but he did not do so. R.S.A. No. 2461 of 1996 3 He was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedure more than any other department but at the same time, 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 worked for about 4 years 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. As said above, he had led medical evidence to prove the ailment. No reasonable disciplinary authority would term absence on medical grounds with proper medical certificates as grave misconduct rendering the employee incorrigible and unfit for service. Non-application of mind by quasi-judicial authorities can be seen in this case which 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. Ordinarily, the matter would have been sent back to the disciplinary Authority for passing the order afresh in accordance with law but that would further lengthen the life of litigation. Since time has already been lost, the judgment and decree of the Courts below is upheld with regard to reinstatement but stands modified to the extent that the period during which the respondent-plaintiff remained absent from duty and the period calculated upto the date on which he reports back to duty pursuant to this judgment, shall not be counted as a period spent on duty. He shall also not be entitled to any service benefits for this period. Respondent-plaintiff may report on duty within a period of 8 weeks to take benefit of this judgment. Emphasis is from a judgment of the Hon'ble Supreme Court in Shri Bhagwan Lal Arya v. Commissioner of Police Delhi and others, 2004(3) JT 384. The present appeal stands partly allowed in the terms indicated above. No costs. ( ARVIND KUMAR ) May 26, 2009 JUDGE JS R.S.A. No. 2461 of 1996 4 R.S.A. No. 2461 of 1996 5