IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 6389 of 2008 Decided on : 08.12.2010. Baldev Singh ..…Petitioner. Versus State of H.P Through Secretary and other. .… Respondents. Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Bhuvnesh Sharma, Advocate. For the Respondents No.1 to 3 : Mr. Anil Jaswal, Dy. Advocate General, V.K. Sharma, Judge (Oral) The petition has been filed on the following prayers vide para 7 (i) to (iii) : “(i) That the rejection orders dated 24.12.1998 (A-25) and 31.3.1998 (A-23), may kindly be quashed and set- aside. (ii) That the dismissal order dated 19.8.1996, vide Annexure A-21, may kindly be quashed and set- aside. (iii) That the Respondent may be directed to reinstate the applicant as a Constable with all consequential benefits like full back salary and seniority forthwith” 1 Whether reporters of the local papers may be allowed to see the judgment? No, 2 2. In the reply, filed on behalf of respondents No.1 to 3, the following stand has been taken vide para, 6 (iii), 6 (v), 6 (viii) and 6 (x) : “6 (iii) In reply to this para it is submitted that the applicant was found absent on the roll call on 11.12.94 and reported for duty on 22.5.95 after absenting willfully for 73 days. He was asked to explain his absence but did not submit any explanation. He was also asked to appear in the orderly room vide order dated 2.5.95 but he did not appear and again absented himself unauthorisedly Therefore, a departmental enquiry was ordered against the applicant vide order dated 24.5.95. 6 (v) Admitted to the extent that the allegation against the applicant were that he remained absent willfully for about 321 days in different spells. The rest of averment made in this para is wrong and hence denied. The enquiry officer has acted legally and the enquiry was conducted in accordance with the Rule 16.24 of Punjab Police Rule as applicable to State of H.P. There was no bias or prejudice against the applicant as alleged. The applicant had admitted the charges at his own will and it is totally wrong to contend that the admission of charges was inserted subsequently at the back of the applicant. In view of this submission the averment is totally wrong and hence denied. 6 (viii) Admitted to the extent that the applicant submitted reply to show cause notice. He inter-alia submitted that the absence from duty was not willful but due to the fact that he was suffering from mental disorder. It is pertinent to submit here that as per the record the applicant failed to adduce any evidence in this regard during the course of enquiry. The 3 applicant did not adduce any medical certificate during the course of enquiry. Moreover, the statement of PW was recorded in the presence of the applicant, who deposed regarding the absence period of the applicant. The applicant neither cross examined the P.W nor he produced any of the medical practitioner as D.W in his defence. The applicant instead produced two defence witnesses who have stated that the applicant was victim of supernatural power (Jadu Tona) which defence is not legally tenable. It is further submitted that no application for grant of leave was received in the office of the respondent No.3 under UPC as contended by the applicant. However, the applicant submitted application on 25.8.95, 19.2.96, 22.4.96, 7.6.96 and 11.7.96 for regularization of leave when he joined duty after remaining absent unauthorisedly . The claim of the applicant is belied from the fact that in reply to show cause notice he has submitted that he could not apply for leave. Thus the averment made in this para is not tenable. 6 (x) Admitted being a matter of record. It is, however, submitted that the applicant had submitted that his absence was due to mental disorder. Therefore, the D.I.G of Police, Northern Range before passing the order on the appeal got the applicant examined from the Psychatrist at the Zonal Hospital, Dharamshala and I.G.M.C Shimla, and the medical authorities have denied any evidence of Psychiatric illness and thus the plea is not tenable. The appeal has thus rightly been rejected. 3. A rejoinder refuting the above stand and reiterating the averments set up in the petition has also been filed. 4 4. The petitioner while working as a Police Constable was proceeded against departmentally on the imputation that he remained wilfully absent from duty between different periods totaling 321 days. Though, the petitioner in reply to the charge- sheet had admitted the above allegation, yet even then a regular enquiry was held against him wherein he had not lead any evidence in his defence. It would be seen that the petitioner has set up the defence of illness as a ground to explain the absent from duty, though he could not establish the same during the enquiry. Consequently, he was dismissed from service vide order dated 22.8.1996, Annexure A-21. Admittedly, the appeal as also the revision filed by him were dismissed. Consequently, he has filed the present petition. 5. It is not disputed that the petitioner had served the respondent-department as Constable from 28.12.1983 to 19.8.1996 which period comes to 12 years 8 months and 22 days. True it is that police is a discipline force. Willful absence on the part of a Police Constable for such a time is no doubt a serious matter. However, the fact remains that on account of dismissal from service the petitioner has lost all the service benefits on account of the service rendered by him in the respondent-department for over 12 years. 6. In view of the above and on an over all view of the matter, the petition is disposed of with a direction to respondent No.2/competent authority that subject to the petitioner making appropriate representation along with copy of this judgment within 5 one month from today, the said respondent/competent authority shall consider the same in accordance with law and Justice and decide the same finally within the next three months by taking into consideration the proportionality between the misconduct proved against the petitioner and the consequent penalty of dismissal from service imposed upon him from the angle whether the same could be substituted by permitting the petitioner to seek Voluntarily Retirement, after affording an opportunity of being heard to him, if so advised. 7. In view of the above, the petition stands disposed of, so also the pending CMP(s), if any. (V.K. Sharma) Judge. 8th December, 2010 CS