R.S.A. No.2227 of 1980 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.2227 of 1980 Date of Decision:- 23.1.2008 Punjab State ....Petitioner(s) through Mr.S.S.Sahu, AAG, Punjab. vs. Arjan Singh ....Respondent(s) through Mr.Balram Gupta, Sr.Advocate with Mr.Pankaj Sharma, Advocate. *** CORAM:-HON'BLE MR.JUSTICE SURYA KANT. *** 1) Whether Reporters of the local papers may be allowed to see the judgment? 2) To be referred to the Reporters or not? 3) Whether the judgment should be reported in the Digest? *** SURYA KANT, J. (ORAL) This order shall dispose of R.S.A.No.2227 of 1980 (Punjab State vs. Arjan Singh) and C.W.P.No.2218 of 2005 (Arjan Singh vs. State of Punjab and others) as both the cases are inter-related. The regular second appeal has been preferred by the State of Punjab against the judgment and decree dated 7.6.1980 passed by the learned Additional District Judge, Jalandhar whereby suit for declaration filed by Arjan Singh ( respondent-plaintiff ) to the effect that the order dated 17.5.1977 whereby he was dismissed from service, was illegal, void, unlawful etc., was decreed and the same was set aside with all consequential benefits. Since no ad-interim stay was granted against the judgment and decree passed by the First Appellate Court, the respondent-plaintiff was re- instated in service. He has, however, been compulsorily retired on R.S.A. No.2227 of 1980 -2- 16.4.1985 which led him to the filing of C.W.P.No.2218 of 2005, referred to above. In order to settle the controversy, it will be apposite to firstly deal with the regular second appeal preferred by the State of Punjab. Mr.S.S.Sahu, learned AAG, Punjab, while assailing the impugned judgment has raised two-fold contentions. Firstly, it is argued that the observations made by the learned First Appellate Court that Rule 16.2(1) of the Punjab Police Rules was not kept in view, is contrary to the record. It is argued that the fact that the entire service record including past proven misconduct(s) have been kept in view while imposing the severest punishment, does suggest that the punishing authority was conscious of the fact that in terms of Rule 16.2(1) of the Rules, punishment of dismissal could be imposed for the gravest misconduct only. Secondly, even if the punishment of dismissal from service was found to be dis-proportionate to the nature of charges proved against the respondent, the First Appellate Court, ought to have remanded the case to the Punishing Authority for the award of some suitable punishment, more so when the findings arrived at by the Inquiry Officer that the respondent-plaintiff wilfully absented himself from duty stands upheld by both the Courts. There appears to be force in both the contentions raised by the learned State Counsel. As is apparent from the judgment dated 7.6.1980, the First Appellate Court has upheld that, the respondent-plaintiff was guilty of absent from duty for four days and six hours which led to imposition of punishment of dismissal from service. It is further evident that the Punishing Authority took into consideration 25 punishments awarded to R.S.A. No.2227 of 1980 -3- the respondent-plaintiff in the past for one reason or the other but mainly due to his absence from duty. In other words, the respondent-plaintiff was held a 'habitual absentee' and an 'incorrigible' sort of employee. It may be true that the Punishing Authority did not expressly mention in the dismissal order that it was a case of “gravest misconduct” warranting severest punishment of dismissal from service. However, the very detailed reference to the previous punishments awarded to the respondent-plaintiff on 25 occasions, was meant to say that the respondent-plaintiff being incorrigible, his 26th mis-conduct warranted no less punishment than his dismissal from service. More over, after setting aside the punishment of dismissal from service, it was imperative upon the learned Ist Appellate Court to remit the case to the Punishing Authority for award of some lesser and suitable punishment. The question, however, arises as to what recourse should now be adopted by this Court? This was a fit case where operation of the impugned judgment ought to have been stayed by this Court while admitting the appeal. In absence thereof, the appellant-State had no other option but to reinstate the respondent-plaintiff in service. He was, however, subsequently retired from service compulsorily on 16.4.1985. It is not in dispute that “pre-mature/compulsory retirement” is also one of the 'prescribed' punishments under the Statutory Rules and had the first Appellate Court remanded the case to the Punishing Authority, the said punishment could possibly be imposed upon the respondent-plaintiff, though as a punitive measure and not in “public interest.” R.S.A. No.2227 of 1980 -4- At this stage, learned counsel for the writ petitioner (Arjan Singh) vehemently contends that since the writ petitioner was allowed to cross efficiency-bar on two occasions, firstly with effect from 1.1.1977 and thereafter with effect from 1.5.1984, the adverse reports, if any, prior thereto, lost their sting and could not have been taken as an adverse material to retire the petitioner compulsorily. In other words, it is contended that there being no adverse report after the year 1977, the compulsory retirement of the petitioner cannot be termed in public and/or administrative interest. Having heard learned counsel for the parties, I am of the considered view that no interference in the impugned order of compulsory retirement is called for. By now, it is well settled that while considering the retention of an employee in service beyond the age of 50/55 years, his entire service record, of course, with more weightage to the service record of later years, needs to be taken into consideration. As has been noticed earlier, the writ petitioner was a habitual absentee and was punished on more than 25 occasions. The petitioner, thus, possessed chequered service record. He being member of a disciplined force, his absence from duty, may be even for a small duration, cannot be taken as a minor mis- demeanour and was rightly viewed seriously. In these circumstances, the formation of an opinion by the Competent Authority that his pre-mature retirement is in public interest, warrants no substitution of opinion by this Court. Having arrived at the afore-said conclusions, the necessary consequences i.e. acceptance of second appeal preferred by the State of Punjab and dismissal of writ petition filed by Arjan Singh, would have R.S.A. No.2227 of 1980 -5- followed. However, the mitigating circumstances, namely, that the writ petitioner was retired more than 22 years back and by now he is more than 75 years old, also merit consideration. Consequently and for the reasons aforestated, the regular second appeal preferred by the State of Punjab is partly allowed to the extent that instead of dismissal of the respondent-plaintiff from service, it is directed that the subsequent order of his compulsory retirement from service shall be taken as a substituted punishment for the proven misconduct which led to passing of the order of dismissal from service. The writ petitioner (respondent-plaintiff in the regular second appeal), therefore, shall be taken to have retired compulsorily from service with effect from 16.4.1985 instead of being treated as a dismissed employee. He shall also be entitled for the monetary benefits, if any, for the intervening period as according to his learned counsel, the writ-petitioner has not been paid his arrears of pay for a period of 2 years and 13 days. The monetary benefits, if any found due, shall be paid within a period of four months from the date of receipt of certified copy of this order, failing which the writ-petitioner shall be entitled to claim interest at the rate of 7% per annum thereon. The regular second appeal as well as the writ petition stand disposed of in the terms stated above. No costs. January 23, 2008 ( SURYA KANT ) poonam JUDGE