R.S.A. No. 359 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 359 of 2008 (O&M) Date of decision: 08.05.2009 Balwinder Singh ....appellant versus State of Punjab and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. K.S. Rekhi, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 25.8.2007 passed by the learned Courts below dismissing the suit filed by the plaintiff/appellant, vide which he challenged the order of his dismissal from service. The plaintiff/appellant was recruited as Constable in the Police Department on 10.11.1989 at Amritsar. He absented from duty while posted at police station Jhander. The appellant was chargesheeted for absence from duty, and as the charges were proved, he was ordered to be dismissed from service. The plaintiff/appellant challenged the order primarily on the ground, that he had suddenly fallen ill. Therefore, had to go home. He also claimed that he suffered from psychiatric problem and remained R.S.A. No. 359 of 2008 (O&M) -2- under treatment with Tantrik. It was claimed that the inquiry held against the appellant was vitiated, as he was not supplied with the copies of the documents and list of witnesses. It was further pleaded that the inquiry was held in violation of principles of natural justice. Opportunity of personal hearing was denied. The plaintiff issued notice under Section 80 of the Code of Civil Procedure and, thereafter, filed the suit. The suit was contested, and the averments made in the plaint were denied. It was pleaded that the inquiry was conducted in accordance with Punjab Police Rules 16.24. The list of witnesses was supplied. It was pleaded that principles of natural justice were followed. The appeal filed by the plaintiff/appellant was also dismissed by the appellate authority. The learned Courts below, on appreciation of evidence, held that the plaintiff/appellant was not entitled to relief claimed. Mr. K.S. Rekhi, the learned counsel appearing on behalf appellant contends, that the appeal raises the following substantial questions of law: - "1. Whether the order of dismissal from service could be sustained as it was not proved that the mis- conduct of the plaintiff/appellant amounted to gravest act of mis-conduct? 2. Whether the authorities failed to consider the length of service while imposing penalty?" In support of the substantial questions of law, the learned counsel for the appellant contended, that the order passed by the Superintendent of Police would show that no opinion was formed R.S.A. No. 359 of 2008 (O&M) -3- whether the mis-conduct alleged was a gravest act of mis-conduct to sustain an order of dismissal. It was also the contention of the learned counsel for the appellant, that absence of 29 days by a Constable who had served for seven years, could not be said to be gravest mis-conduct to impose penalty of dismissal, specially when, the plaintiff/appellant had performed duties during the peak of terrorism. In support of contention, the learned counsel for the appellant placed reliance on the judgment of this Court in Gurdev Singh Vs. State of Haryana and others, 1976(2) SLR 442 wherein this Court was pleased to lay down that while awarding punishment, if the punishing authority does not take into consideration the length of service. The order would be bad in law, specially when the allegation against police officer, being in drunken condition while on duty, could not be said to be gravest act of mis- conduct. Reliance has also been placed on the judgment of this Court in State of Punjab Vs. Parkash Chand, Constable, 1992(1) SLR 174 wherein this Court was pleased to observe that absence without leave does not amount to gravest act of mis-conduct. Reliance has also been placed on the judgment of this Court in Surinder Singh Vs. State of Punjab, 2000(1) SCT SCT 509 wherein again, the absence of duty was not held to be gravest act of mis-conduct. On cosideration, I find no force in the contentions raised by the learned counsel for the appellant. The judgments relied upon by the learned counsel for the appellant also cannot be applied to the case of the plaintiff/appellant, in view of the settled law by the Hon'ble Supreme Court that absence from duty by a member of a disciplined force is a R.S.A. No. 359 of 2008 (O&M) -4- gravest act of mis-conduct. Once, it is not disputed that the plaintiff/appellant was absent from duty for 29 days, and further had failed to give any explanation before the inquiry officer, about his absence, and the story of mental sickness was not proved, mere fact that in the order of dismissal, the act complained is not said to be the gravest act of mis-conduct, would not mean that absence from duty is not gravest act of mis-conduct, as contended. The judgments relied upon by the learned counsel for the appellant cannot be applied to the facts of the present case, in view of the law settled by the Hon,ble Supreme Court holding, that the absence from duty by a member of disciplined force amounts to gravest act of misconduct. The substantial questions of law raised, therefore, are answered against the plaintiff/appellant. Dismissed in limine. (Vinod K. Sharma) Judge May 08, 2009 R.S.