LPA No. 436 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 436 of 2010 Date of Decision 16.07.2010 Ex. Constable/ GD Trimohan No. 031456987, B/139 Battalion --Appellant Versus Union of India and others ---Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE A.N. JINDAL Present: Mr. Anil Ghanghas, Advocate for the appellant. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. Kumar, J. The instant appeal by the writ petitioner-appellant filed under Clause X of the Letters Patent is directed against the judgment dated 11.02.2002 rendered by the Learned Single Judge in C.W.P. No. 2466 of 2010. The learned Single Judge has categorically held that appellant is a member of disciplined Force and in the total service of 4 years, he has absented himself three times. Petitioner has become habitual to remain absent and has adopted incorrigible attitude, which makes him unfit for employment in the disciplined Force. The learned Single Judge has upheld the order of his removal dated 16.06.2007 (Annexure P14) and the consequential order of dismissing appeal, revision and mercy petition. LPA No. 436 of 2010 -2- Mr. Anil Ghanghas, learned counsel for the appellant has vehemently argued that absence from duty is not such a misconduct, which would attract the extreme punishment of removal from service. According to learned counsel for appellant, in a similar situation, Hon'ble the Supreme Court has laid down guidelines in the case of Shri Bhagwan Lal Arya v. Commissioner of Police Delhi and others 2004 (4) SCC 560. Having heard learned counsel for the writ petitioner- appellant, we are of the view that there is no merit in the appeal. It has come on record that a regular departmental enquiry has been held and the charges of absence from duty and overstaying the period of leave have been established. It has also come on record that the petitioner on earlier occasion has also remained absent. It is well settled that if the departmental enquiry does not suffer from any procedural lacunas then the quantum of punishment cannot be interfered with. However, in Bhagwan Lal Arya's case (supra), the view taken is that disproportionality of punishment can also be one of the ground. In that case, it was found as a fact that officer in Delhi Police has remained absent from duty on account of compulsion on medical ground. His application on medical ground was also sanctioned later on. It was on those facts that their Lordships of the Supreme Court has interfered in the quantum of punishment. However, in enquiry the factum of absence was proved and he was removed from service. Whereas in the present case, the writ petitioner-appellant has not been able to show any such LPA No. 436 of 2010 -3- compulsion to remain absent from duty on medical ground or that his application for leave on medical ground was sanctioned later on. Moreover, the writ petitioner-appellant has found to be repeatedly committing this lapse of remaining absent from duty. In a period of four years, he has remained willfully absent on three occasions. In the case of Jai Shanker v. State of Rajasthan, AIR 2004 (SC) 495, a five Judge Constitution Bench of Hon'ble the Supreme Court has held that absence from duty is a misconduct and could be a deserving circumstance for his removal. Therefore, we find no legal infirmity in the view taken by the learned Single Judge especially when no lacuna in observing the procedural safeguard against the delinquent officer has been found. Such like lacuna has also not been pointed out by the writ petitioner-appellant. As a sequel to the above discussions, this appeal fails and same is dismissed. (M.M. KUMAR) JUDGE (A.N. JINDAL) JUDGE July 16, 2010 Atul