IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 271 of 1994 Date of decision: 27.3.2009 State of Punjab … Appellant. Versus. Surinder Pal … Respondent THE HON’BLE MR. JUSTICE ARVIND KUMAR Present: Mr. B.S. Sra, DAG Punjab, for the appellant Mr. Sukhbir Singh, Advocate and Mr. R.K.Handa, Advocate … ARVIND KUMAR, J: This is defendants’ second appeal directed against the judgments and decrees of the Courts below decreeing the suit of the plaintiff, Surinder Pal (respondent herein) for declaration to the effect that order dated 12.4.1983, conveyed vide endorsement No. 440-44/St. dated 12.4.1983 passed by the Superintendent of Police (Headquarters), Gurdaspur, dismissing him from police service is illegal, null and void having no binding effect on the service, along with further relief of all benefits of service and other emoluments. In brief, the facts are that the plaintiff, Surinder Pal (respondent herein) was employed as Constable in the District Police Force, Gurdaspur, and was appointed as such in the year 1971. In October, 1982, since he was found absent from duty willfully, a departmental enquiry was initiated against him. On conclusion of said enquiry, vide order dated 12.4.1983 passed by the Additional Superintendent of Police, he was dismissed from service. The plaintiff then brought the present suit challenging the order of dismissal inter-alia taking the plea that the Additional Superintendent of Police, who passed the dismissal order, was not competent to do so and that RSA No. 271 of 1994 -2- the order of punishing Authority is not speaking one and the enquiry proceedings are in utter violation of the Police Act. Defendants upon notice of the suit filed their written statement thereby justifying their action. Trial Court thereafter framed the necessary issues and on appreciation of the evidence led thereon, decreed the suit of the plaintiff vide judgment and decree dated 15.1.1993. On an appeal preferred by the defendants against the said judgment and decree, the first appellate Court vide its judgment and decree dated 7.8.1993 though following the ratio laid down in State of Punjab v. Ram Sarup Constable, 1985(2) SLR-369, did not agree with the finding arrived at by the trial Court with regard to competence of the person passing the order of dismissal and held that dismissal order passed by the Additional Superintendent of Police cannot be set aside simply on the ground that it has not been passed by the Superintendent of Police but keeping in view the other grounds, dismissed the appeal of the defendants. Hence, the present appeal by the defendants. Respondent-plaintiff Surinder Pal has not filed any cross- appeal/cross-objections. I have heard learned counsel for the parties. The question which arises for determination in this appeal is whether absence of the plaintiff-respondent, who is a constable in the Punjab Police, for about 8 days could be regarded as gravest act of misconduct proving incorrigibility and unfitness for police service warranting dismissal and whether it is mandatory for the disciplinary Authority to look into the length of service and claim of pension at the time of awarding punishment. 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 RSA No. 271 of 1994 -3- 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 for about 8 days though he also remained absent during the course of enquiry due to which the enquiry was concluded ex-parte. However, there is no previous record of his having remained absent or indulging in any misconduct. He has already put in 12 years of service. No rule has been brought to the notice of this Court that he is not entitled to any pensionary benefits for rendering about 12 years of service. Giving consideration to the length of service, the right to pension is inherent under Rule 16.2 itself and thus, it cannot be ignored. The disciplinary Authority having failed to adhere to the rules while not taking into consideration the right to pension, 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. Accordingly, the same is hereby set aside. In the afore-mentioned circumstances, ordinarily, the case is required to be remitted back to the disciplinary Authority to consider the matter afresh but as already noticed, in the present case the dismissal order had been passed in the year 1983, meaning thereby that about 26 years have elapsed and therefore, in such a situation, as held by the Hon'ble Supreme Court in Harjit Singh and another v. The State of Punjab and another, 2007(4) SLR 645, the Court is competent to fix the quantum of punishment. Keeping in view the facts and circumstances of the case and in particular having regard to the passage of time, punishment of compulsory retirement will meet the ends of justice. If otherwise eligible, the respondent-plaintiff would be entitled to retiral benefits, along with interest at the rate of 6 per cent per annum from the date of filing of suit till the date of actual payment. Let the needful be done within two months from the date of receipt of copy of this order. The present appeal stands partly allowed in the manner indicated above. March 27, 2009 ( ARVIND KUMAR ) JS JUDGE JS