IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 9981 of 2008 Decided on : 10.10.2011 ________________________________________________ Shakti Kumar … Petitioner Versus The State of Himachal Pradesh & others … Respondents. ___________________________________________________ Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? 1 No. For the petitioner : Mr. Ranjan Sharma, Advocate. For the respondents : Mr. P.K. Sharma, Addl. Advocate General, with Mr. Anil Jaswal, Dy. Advocate General. ____________________________________________________ V.K. Sharma, Judge (oral). Though the petition has been filed on the following three substantive prayers vide para 7 (i) to (iii), yet at the time of hearing only prayer (iii) is pressed:- “i) That the rejection orders dated 2.2.2002 and 24.9.2001 vide Annexures A-11 and A-9 and the dismissal orders dated 25.5.1999 vide Annexure A-7, may kindly be quashed and set aside. ii) That the Respondents may be directed to reinstate the applicant with all consequential benefits like seniority, 1 Whether reporters of the local papers may be allowed to see the judgment?No. 2 continuity in service for the absence period and back wages also. iii) That in the alternative to reinstatement, the Respondents may be directed to give pension or compassionate allowance as per Rule 41 of the Rules forthwith.” 2. In reply, the respondents have taken the following stand vide para 6(viii) and (x):- “(viii) In reply to contents of this para it is submitted that the enquiry against the applicant was conducted in accordance with the provisions laid down in Punjab Police Rule 16.24 (as applicable to State of H.P.). The applicant was served with the Summary of Allegations and subsequent thereto the statements of prosecution witnesses were recorded. However, the applicant did not associate with the departmental proceedings and thus he was ordered to be proceeded ex-parte in view of the provision laid down in Rule 16.24(2). Thus no defence witnesses could be examined in the departmental enquiry and the enquiry officer submitted his findings holding the applicant to be guilty of the misconduct of habitually remaining absent from duty unauthorizedly. It is pertinent to submit here that the applicant was directed time and again to attend the enquiry but he did not bother to attend the same and prove his innocence. 3 (x) In reply to contents of this para it is submitted that the applicant remained absent without leave w.e.f. 6.1.97. Therefore, he was charged for habitually remaining absent. The Departmental Enquiry was conducted in accordance with the Police Rules. However the applicant did not associate himself with the D.E. and during the course of enquiry he again absented himself from duty w.e.f. 5.6.97 for 580 days.” 3. Rejoinder refuting the above stand on behalf of the respondents and reiterating the averments set up in the petition has been filed. 4. Departmental action was initiated against the petitioner, who at the relevant time was on the establishment of the respondent-department as police constable, on the following charge:- “Whereas Sh. Shakti Chand, C. No. 133 Police, Lines Dharamshala, had been absenting from duty without leave and without prior permission willfully since 6.1.1997. On this, the office of the undersigned has sent W/T No. 1046-48 dated 9.1.1997 and W/T No. 3049-50 dated 29.1.1997, directing you to rejoin duty but you did not do so. In-addition to the above, Sh. Shakti Chand C. No. 133 had remained absent on previous occasions also as under:- 1. From 3.2.1992 to 8.11.1992 = 278 days 2. from 6.2.1995 to 8.2.1995 = 2 “ 3. from 23.11.1995 to 24.11.1995 = 1 “ 4 4. from 3.9.1995 to 14.11.1995 = 73 “ 5. from 19.5.1996 to 24.9.1996 = 129 “ ______________ Total = 483 days _______________ It is clear from the period of above absence that Shakti Chand C. No. 133 had been absenting from duty willfully and the same amounts to non devotion to duty, indiscipline and disobedience of the orders of the superiors”.” 5. The records reveal that the petitioner did not join the enquiry proceedings despite due notice and instead allowed the same to be concluded against him ex parte and consequently he was visited with the penalty of dismissal from service vide order dated 25.5.1999, Annexure A-7. 6. By placing reliance upon Sub Rule (1) of Rule 16.2 of the Punjab Police Rules, 1934, which is extracted below, the learned counsel for the petitioner submits that the charge against the petitioner was not for “gravest acts of misconduct” and instead the same can at best be characterized as “cumulative effect of continued misconduct of proving incorrigibility and complete unfitness for police service”. The learned counsel further submits that while awarding the punishment of dismissal from service it was incumbent upon the competent authority to have regard to the length of service of the 5 petitioner and his claim for pension. It is stated that the petitioner had joined the employment of the respondent- department as constable on 3.4.1984 and had continued as such uptill 6.1.1997, that is, for more than 13 years and was thus having pensionable service to this credit:- “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.” 7. In support of the above submission, reliance has also been placed on the dictum of law laid down by the Hon’ble Supreme Court in a like case in Harjit Singh and another vs. State of Punjab and another, (2007) 9 Supreme Court Cases 582, wherein , it has been stated as under vide relevant part of para 14:- 8. The second part of the rule connotes the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and that the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The contention that both parts must be read together appears to us to be illogical. Second part is referable to a misconduct minor in character which does not by itself warrant an order of dismissal but due to continued acts of misconduct would have insidious 6 cumulative effect on service morale and may be a ground to take lenient view of giving an opportunity to reform. Despite giving such opportunities if the delinquent officer proved to be incorrigible and found completely unfit to remain in service then to maintain discipline in the service, instead of dismissing the delinquent officer, a lesser punishment of compulsory retirement or demotion to a lower grade or rank or removal from service without affecting his future chances of re- employment, if any, may meet the ends of justice. Take for instance the delinquent officer who is habitually absent from duty when required. Despite giving an opportunity to reform himself he continues to remain absent from duty off and on. He proved himself to be incorrigible and thereby unfit to continue in service. Therefore, taking into account his long length of service and his claim for pension he may be compulsorily retired from service so as to enable him to earn proportionate pension. The second part of the rule operates in that area. It may also be made clear that the very order of dismissal from service for gravest misconduct may entail forfeiture of all pensionary benefits. Therefore, the word 'or' cannot be read as "and". It must be disjunctive and independent. The common link that connects both clauses is "the gravest act/acts of misconduct." 8. In view of the above, the petition is disposed of with a direction that subject to the petitioner making a detailed representation supported by documents, if any, along with copy of this judgment with regard to prayer iii), to respondent No.2 within one month from today, who shall consider the same and take final decision in the 7 matter within further two months in the light of Sub Rule 1 of Rule 16.2 of the Punjab Police Rules, 1934 and the judgment of the Hon’ble Apex Court referred to hereinabove, after affording an opportunity of being heard to the petitioner, if so desired. Needless to say that consequential benefits, if any, shall follow the decision on the representation. 9. The petition stands disposed of, so also pending application(s), if any, in the above terms. (V.K. Sharma) Judge. October 10, 2011. (Lsp)