C.W.P. No.5419 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. C.W.P. No.5419 of 2011 (O&M) DATE OF DECISION : 22.12.2011 Ghan Shyam Ex.Constable PETITIONER VERSUS State of Haryana and others RESPONDENTS CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Shri S.K.Redhu, Advocate for the petitioner. Shri Harish Rathee, Senior D.A.G. Haryana. MAHESH GROVER, J. The petitioner impugns the order of his dismissal and the subsequent orders passed in appeal and the revision by which the initial order of dismissal was upheld. The petitioner was enrolled as a Constable on 6.8.1985. According to the facts as reflected in the impugned order, the charge against the petitioner was that he had proceeded on 3 days leave commencing from 15.6.2006 and was required to report back on 19.6.2006, but he failed to do so and reported back on 5.9.2006 having remained absent for a total period of 79 days. A regular departmental enquiry was conducted against him in which he was found guilty of C.W.P. No.5419 of 2011 -2- absence from duty without any sufficient cause. This resulted in the passing of the order dated 25.12.2007 ordering the dismissal of the petitioner from service. The appeal submitted by him was also rejected vide order dated 30.6.2008 and the revision against the same was also dismissed on 17.4.2009. The petitioner contends that he has put in 22 years of service and there was no occasion for the respondents which would justify their action of dismissing him from service, as such a situation is not contemplated in Rule 16.2 of the Punjab Police Rules. The respondents have filed their reply in response to the petition and have stated in para-1 of the preliminary submissions that the petitioner is a habitual absentee and the details of his absence have been elaborately set out and which period ranges from 1987 to 2006 and if the period is cumulatively taken, it comes to 1210 days. Learned counsel for the petitioner would contend before this Court that the conditions envisaged in Rule 16.2 of the Punjab Police Rules do not prescribe any misconduct as the one which has been alleged against the petitioner to justifiably invite an order of dismissal. The respondents, on the other hand, seek to justify the passing of the order in view of the habitual misconduct of the petitioner. On due consideration of the matter, I am of the opinion that the petitioner has demonstrated his conduct by his repeated absence from duty on different periods ranging from 1987 to 2006 without any justification. Following are the details of absence recorded against the petitioner :- (a) 31.3.87 to 29.4.87 = 30 days (b) 10.7.87 to 20.7.87 = 12 days (c) 16.2.88 to 29.2.88 = 14 days (d) 12.7.88 to 17.7.88 = 5 days C.W.P. No.5419 of 2011 -3- (e) 9.8.88 to 16.8.88 = 8 days (f) 2.9.88 to 27.9.88 = 26 days (g) 4.3.89 to 9.3.89 = 7 days (h) 16.8.89 to 25.8.89 = 10 days (i) 9.9.90 to 14.9.90 = 6 days (j) 28.10.90 to 16.11.90 = 20 days (k) 5.7.91 to 20.7.91 = 16 days (l) 25.4.92 to 26.4.92 = 2 days (m) 24.7.92 to 30.7.92 = 7 days (n) 5.9.92 to 13.9.92 = 9 days (o) 5.4.92 to 16.4.92 = 12 days (p) 24.10.92 to 30.10.92 = 7 days (q) 25.1.93 to 20.3.93 = 54 days (r) 1.4.93 to 11.4.93 = 11 days (s) 7.9.95 to 10.10.95 = 33 days (t) 19.11.95 to 15.1.96 = 58 days (u) 28.1.96 to 31.1.96 = 4 days (v) 3.1.98 to 21.1.98 = 19 days (w) 18.4.99 to 18.4.99 = 1 day (x) 4.5.99 to 13.5.99 = 9 days (y) 14.1.2000 to 25.1.2000 = 11 days (z) 27.1.2000 to 3.4.2000 = 67 days (aa) 1.7.2000 to 4.9.2000 = 66 days (ab) 5.9.2000 to 19.9.2000 = 15 days (ac) 22.9.2000 to 8.11.2000 = 48 days (ad) 3.12.2000 to 2.1.2001 = 31 days (ae) 12.1.2001 to 26.1.2001 = 15 days C.W.P. No.5419 of 2011 -4- (af) 11.12.2002 to 15.3.2003 = 95 days (ag) 18.6.2002 to 21.6.2002 = 3 days (ah) 11.8.2003 to 12.11.2003 = 93 days (ai) 13.7.2004 to 14.7.2004 = 1 days (aj) 2.8.2004 to 20.8.2004 = 18 days (ak) 4.12.2003 to 4.5.2004 = 151 days (al) 23.8.2004 to 1.10.2004 = 40 days (am) 26.12.2005 to 16.1.2006 = 21 days (an) 11.11.2005 to 21.12.2005 = 40 days (ao) 27.4.2006 to 20.5.2006 = 24 days (ap) 19.6.2006 to 5.9.2006 = 79 days (aq) 24.9.2006 to 6.10.2006 = 12 days _____________ TOTAL = 1210 DAYS _____________ Besides this, the petitioner has 9 adverse entries to his credit and he has been inflicted with punishment of stoppage of 15 annual future increments with permanent effect. The aforesaid facts have not been denied by the petitioner by filing any couter affidavit. Rule 16.2 which governs the principle of dismissal of a police official from service is extracted here below :- “16.2 Dismissal - (1) Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. In making such award regard shall be had to the length of service of the offender and his C.W.P. No.5419 of 2011 -5- claim to pension. Explanation - For the purpose of sub rule (1) the following shall, inter alia, be regarded as gravest acts of misconduct in respect of a police officer, facing disciplinary action :- (i) indulging in spying or smuggling activities ; (ii) disrupting the means of transport or of communication ; (iii) damaging public property ; (iv) causing indiscipline amongst fellow policemen ; (v) promoting feeling of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, community or language ; (vi) going on strike or mass casual leave or resorting to mass absentions ; (vii) spreading disaffection against the Government and (viii) causing riots and the life.” It is evident that dismissal can be awarded only for the “gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service”. The Court is of the opinion that the case of the petitioner squarely falls within the parameters of Rule 16.2 as he has been absenting himself habitually and the periods of absence as detailed above and not denied by the petitioner, are merely a reflection of his incorrigibility proving himself to be a person unfit for police service. It reflects a complete defiance of discipline which is expected from a person in uniformed service. I, therefore, do not find any merit in the instant petition and rather find that it is one of the cases where the punishment of dismissal can be said to be C.W.P. No.5419 of 2011 -6- more than justified. Learned counsel for the petitioner has placed reliance upon a judgment of the Hon'ble Supreme Court in State of Punjab v. Dharam Singh 1997(4) S.C.T. 410 and numerous judgments of this Court in Dhan Singh v. State of Haryana and others 2008(3) S.C.T. 816, State of Punjab v. Achhar Singh 1992(1) S.C.T. 43, Mahipat v. State of Haryana 1994(3) S.C.T. 337, Pritam Singh v. Punjab State Service through the Collector Amritsar 1997(1) S.C.T. 552, Navtej Singh v. State of Punjab 1997(4) S.C.T. 175, Ex.H.C.Hari Krishan v. State of Haryana 2000(1) S.C.T. 1112, Bharat Singh v. State of Haryana 2000 (2) S.C.T. 159 and State of Punjab v. Jagtar Singh 2000(3) S.C.T. 177, to contend that the length of service rendered by the petitioner should have been considered for the purposes of his pension at the time of passing of the impugned order. A perusal of the aforesaid judgments relied upon by the counsel for the petitioner do not in any way dilute the impact of the course adopted by the respondents, as absence from duty has clearly been considered to be a misconduct, but the question is whether repeated absence from duty would be distinct from a mere absence from duty on an occasion or two. For this reason, the Court is of the opinion that the kind of absence which the petitioner has demonstrated in his service tenure, only reveals his lack of discipline and his incorrigibility and therefore, necessarily has to be considered as an act of gravest misconduct. In fact, it falls within the alternate clause of Rule 16.2 which is as follows : “ ... or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service.” In the judgments relied upon by the learned counsel for the petitioner, there were stray incidents of absence and none of them reflected the C.W.P. No.5419 of 2011 -7- kind of incorrigibility that the petitioner has demonstrated. For the aforesaid reasons, I am of the opinion that there is distinctive feature in the case of the petitioner which does not attract the observations made in the aforesaid precedents. The petition is dismissed. (MAHESH GROVER) December 22, 2011 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO