LPA No. 1147 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 1147 of 2009 (O&M) Date of decision:- 06.10.2010 Ex. Head Constable Shamsher Singh No. 321/NSR. ......Appellant Vs State of Punjab through Secretary, Department of Home, Punjab Civil Sectt., Chandigarh and others. ......Respondents CORAM:- HON'BLE MR. JUSTICE RANJAN GOGOI HON'BLE MR. JUSTICE RAJAN GUPTA Present: - Mr. Balbir Singh, Advocate, for the appellant. Mr. Rajesh Bhardwaj, Additional Advocate General, Punjab, for the respondents. * * * * RANJAN GOGOI, J (ORAL) Heard. Notice on this Letters Patent Appeal was issued on the limited point of entitlement of the appellant/writ petitioner to pension. The appellant/writ petitioner was dismissed from service upon the charge of unauthorized absence from duty for 92 days being proved in a departmental inquiry. This was by order dated 16.07.2007. The departmental appeals filed by the appellant/writ petitioner having also been dismissed recourse to the writ remedy was made. The same having proved futile, the Letters Patent Appeal has been filed. LPA No. 1147 of 2009 (O&M) 2 The tentative observation of the Bench while issuing notice for 26.03.2010 with regard to the validity of the dismissal of the appellant/writ petitioner is reaffirmed having regard to the fact that in the inquiry held the charge against him was found to be established. In so far as pension is concerned, any direction to that effect would necessarily require conversion of punishment of dismissal to some other lesser punishment. Learned Counsel for the appellant/writ petitioner has urged that under Rule 16.2 of the Punjab Police Rules, 1934 not only the misconduct must be of the gravest type but at the time of infliction of the punishment of dismissal the disciplinary authority must also have regard to the length of service rendered and the fact that in normal course the concerned employee would have been entitled to pension. Rule 16.2 of the Punjab Police Rules, 1934 is in the following terms:- “Dismissal—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 an award regard shall be had to the length of service of the offender and his claim to pension.” While the meaning sought to be ascribed to the provisions of the aforesaid Rule, extracted above, by the learned Counsel for the appellant/writ petitioner appears to be correct, a reading of the show cause notice issued by the disciplinary authority indicates that on eight earlier occasions punishments had been awarded to the appellant/writ LPA No. 1147 of 2009 (O&M) 3 petitioner for remaining absent for a total 1221 days during his tenure of 18 years and 05 months of service. The details of such absence are available in the said show cause notice. The above facts which have been proved in the inquiry would go to show that the appellant/writ petitioner is a habitual absentee and, therefore, in terms of Rule 16.2 the cumulative effect of his conduct in unauthorisedly remaining absent from duties has rendered such conduct to be of the gravest type warranting the penalty of dismissal. If the penalty of dismissal is to be maintained the question of pension will not arise. Letters Patent Appeal, therefore, is dismissed on the above basis. (RANJAN GOGOI) JUDGE (RAJAN GUPTA) 06.10.2010 JUDGE Amodh