C.W.P No. 16511 of 1997 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 16511 of 1997 Date of decision : May 26, 2009 Rajinder Kumar, ...... Petitioner (s) v. State of Haryana and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. R.K.Malik, Sr. Advocate with Mr.Yashdeep Singh, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG Haryana for the respondents. *** 1. Whether Reporters of Local Newspapers 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 ? *** AJAY TEWARI, J The petitioner joined the Haryana Police as Constable on 24.12.1979. He was ultimately dealt with departmentally on the allegation that he remained absent from duty from 4.9.1993 to 10.9.1993 (7 days), 28.9.1993 to 11.10.1993 (14 days) and 13.10.1993 to 31.10.1993 (19 days) without any leave. During inquiry proceedings, he confessed his guilt and pleaded that he remained absent without leave only on account of the fact that he was a patient of tuberculosis (T.B). In reply to the show cause, after C.W.P No. 16511 of 1997 ::2:: having been found guilty, the petitioner submitted a medical certificate showing that he was indeed a patient of T.B. The punishing authority held as follows :- “.....In the case in hand the absence from duty for 37 days on the part of the defaulter was not an isolated act. Even prior to this as mentioned earlier, there has been repeated acts of remaining absent from duty, and taking lenient view of the matter, the defaulter had been let off by the award of lesser punishment giving him an opportunity to reform. Despite giving an opportunity to reform himself he continued to remain absent from duty off and on. Such a misconduct from a member of disciplined force is not expected, who has about 15 years of service of his credit. He has thus proved himself to be incorrigible and thereby unfit to continue in service. Police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious affects in the maintenance of law and order.” Counsel for the petitioner has argued that the petitioner has almost 15 years of regular service and the absence proved was not intentional and hence could not come within the ambit of `gravest misconduct' used in rule 16.2(1) of the Punjab Police Rules. He has relied upon Dhan Singh vs State of Haryana and others, 2009(1) RSJ 62 wherein a Division Bench of this Court held as follows :- “12. In the present case, the explanation clearly specifies C.W.P No. 16511 of 1997 ::3:: the purpose as it starts with the words for the purposes of Sub Rule (1) and reference in sub-rule one can only be linked to the expression used therein (gravest misconduct). The language of the Explanation thus indicates that expression “gravest misconduct” used in sub-rule (1) of Rule 16.2 has to be confined to the definition and acts as specified from Clauses (i) to (viii) in the Explanation. Thus, acts complained of, if fall within the purview of any of the clauses (i) to (iii) would alone constitute “gravest misconduct”. 13. The next question which falls for consideration is whether the term “gravest misconduct” as defined/specified in the Explanation is relevant for first part of Rule 16.2(i) or will it have to be read in conjunction with the entire rule. No rule has been brought to our notice wherein the expressions “misconduct” or “gravest misconduct” have been defined except the Explanation appended to the aforesaid Rule. Explanation only defines “gravest misconduct” and not “misconduct”. From the reading of Rule, it also appears that the punishment of dismissal of a delinquent official can be imposed on a delinquent for the gravest act of misconduct or even the cumulative effect of continued misconduct. However, in both the cases incorrigibility and unfitness for police service has to be proved. This Rule came up for consideration before the Hon'ble C.W.P No. 16511 of 1997 ::4:: Supreme Court in the case of State of Punjab vs Ram Singh, Ex.Constable, 1992(4) SCC 54 wherein following observations were made :- `7. Rule 16.2(1) consists of two parts. The first part is referable to gravest acts of misconduct which entails awarding an order of dismissal. Undoubtedly there is distinction between gravest misconduct and grave misconduct. Before awarding an order of dismissal it shall be mandatory that dismissal order should be made only when there are gravest acts of misconduct, since it impinges upon the pensionary rights of the delinquent after putting long length of service. As stated the first part relates to gravest acts of misconduct. Under General Clauses Act singular includes plural “act” includes acts. The contention that there must be plurality of acts of misconduct to award dismissal is fastidious. The word “acts” would include singular “act” as well. It is not the repletion of the acts complained of but its quality, insidious effect and gravity of situation that ensures from the offending “act”. The colour of the gravest act must be gathered from the surrounding or attending circumstances. Take for instance, the delinquent who put in 29 years of continuous length of service and had unblemished C.W.P No. 16511 of 1997 ::5:: record, in thirtieth year he commits defalcation of public money or fabricates false records to conceal misappropriation. He only committed once. Does it mean that he should not be inflicted with the punishment of dismissal but be allowed to continue in service for that year to enable him to get his full pension. The answer is obviously no. Therefore, single act of corruption is sufficient to award an order of dismissal under the rule as gravest act of misconduct. 14. In the case of Randhir Singh vs Dy. Inspector General of Police, Ambala Range Ambala Cantt and another, 2005(1) SLR 259(P&H), a Bench of this Court considered the scope of Rule 16.2 of the Punjab Police Rules, 1934 and held as under :- `I have perused the order of punishment dated 7.12.1984 (Annexure P-3). The punishing authority, while inflicting the punishment of dismissal from service on the petitioner, admittedly, did not take into consideration the fact that the petitioner had rendered more than 10 years service entitling him to pensionary benefits. The punishing authority also did not take into consideration the fact that the petitioner had not committed any act of omission or commission described as “gravest acts of misconduct” by the C.W.P No. 16511 of 1997 ::6:: rule itself, while inflicted the gravest punishment prescribed. In its aforesaid action, the authorities obviously did not follow Rule 16.2 in its letter and spirit. It is mandatory for the punishing authority to take into consideration the length of service of an employee and his claim to pension before inflicting the punishment of dismissal from service under Rule 16.2 of the Punjab Police Rules.' This judgment was rendered on the basis of a Division Bench judgment of this Court rendered in the case of Constable Shiv Charan vs The Superintendent of Police, Gurgaon, District Gurgaon and others, 1998(3) Recent Services Judgments 151. 15. A Division Bench of this Court in the case of Constable Om parkash vs State of Haryana and others, 1995(3) SCT 170, while considering the scope of Rule 16.2, particularly, the obligation of the disciplinary authority to take into consideration the length of service and the right to pension, made following observations:- `11. On notice of motion having been issued, written statement was filed by the Superintendent of Police, Sirsa, inter alia stating that the petitioner was relieved on May 4, 1990 from Police Station Uklana District Hissar on his transfer to Police Lines, Hissar but he did not report there. Subsequently on May 16, 1990, he reported and he C.W.P No. 16511 of 1997 ::7:: was ordered to be transferred to District Sirsa but he did not report there till September 15, 1990. Thus there was absence for 12 days and 3 hours on the first occasion and 4 months on the second occasion. He was described as a habitual absentee. He had not completed 20 years of qualifying service to claim pension. His length of service was thus not required for taking into consideration. No reply to the show-cause notice was submitted by the petitioner. Since he continuously remained absence even during the enquiry, no personal hearing was required to be given to him. Findings of the Enquiry Officer were served upon him on July 23, 1991. No evidence in defence was produced by him to support his supposed plea of illness. Before imposing punishment show cause notice was given. Taking into consideration the constant absence on the occasions mentioned above, a finding was recorded that the delinquent was proving his incorrigibility and complete unfitness for the police. Keeping in view the ratio of the decisions referred to above, no case for interference is made out in this case.' In addition, judgment of the Hon'ble Apex Court in the case of Harjit Singh and Anr vs The State of Punjab and Anr., 2007(4) SLR 645, the Hon'ble Supreme Court while C.W.P No. 16511 of 1997 ::8:: relying upon the earlier Apex Court judgment in the case of State of Punjab vs Ram Singh (supra) observed as under :- `15. In the aforementioned situation, ordinarily, we would have asked the Disciplinary Authority to consider the matter afresh, but the occurrence has taken place in the year 1984. Appellants and the said Parminder Singh had worked only for a few years, one of them is dead. In the aforementioned situation, we are of the opinion that we would be justified to fix the quantum of punishment. We are of the opinion that in the facts and circumstances of this 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 delinquents, would be entitled to retiral benefits. The appeal is allowed to the aforementioned extent.” 16. From the report of the Enquiry Officer dated 11.6.2003, it appears that the petitioner was charged for remaining absent from duty from 12.9.2002 till 3.10.2002 for 22 days and from 13.10.2002 to 20.1.2003 for 100 days. This is the only charge against him. The Disciplinary Authority not only considered the report of the Enquiry Officer but also considered some earlier punishments imposed upon the petitioner relating to C.W.P No. 16511 of 1997 ::9:: consuming alcohol for which he was punished somewhere in the year 2001 and also the absence of the petitioner from enquiry and consequently imposed the punishment of dismissal.” The claim in this writ petition is to set aside the dismissal order which was confirmed in appeal. In the written statement it has been mentioned that apart from the present case of absence, the petitioner had been imposed the following punishments at different times :- “1) awarded punishment of censure for remaining willfully absent for 21 days on 28.10.1986; 2) warned for willful absence from duty on 9.8.1992; 3) dealt with departmentally for absence for 49 days in 1990 (the said period ultimately being treated as leave without pay); 4) punished with withdrawal of two future increments with permanent effect in 1994 for similar unauthorized absence for 37 days in 1993; 5) imposed punishment of withdrawal of 5 increments with cumulative effect on 13.9.1990 for remaining willful absent for 113 days in 1988; 6) two inquiries were kept pending on the ground of willful absence due to the inquiry in question; 7) another inquiry was also kept pending for having been found sleeping on santry duty and for misbehaving; 8) dealt with departmentally and one increment with C.W.P No. 16511 of 1997 ::10:: cumulative effect was stopped in 1994 for having consumed liquor on duty and misbehaving with the public.” It is, thus, clear that the finding regarding the petitioner having committed `gravest misconduct' cannot be faulted. However, reading the impugned order against the backdrop of the latest ex-position of law (re- produced above), I find that the punishing authority has not considered the question regarding the right of the petitioner's pension. In the circumstances, this writ petition is allowed, the impugned orders of punishment (Annexures P-3 and P-8) are set aside and the matter is remanded back to the disciplinary authority for taking a fresh decision on the above aspect and pass a fresh order of punishment within a period of three months. However, the order of reinstatement shall remain in abeyance till such fresh consideration and will depend upon the outcome of the same. ( AJAY TEWARI ) May 26, 2009. JUDGE `kk'