IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 9561 of 2009 DATE OF DECISION : JULY 8, 2009 JASPAL SINGH (EX-CONSTABLE No.784/LDH) ....... PETITIONER(S) VERSUS STATE OF PUNJAB & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. VK Shukla, Advocate, for the petitioner(s). AJAI LAMBA, J. Jaspal Singh has filed this petition under Articles 226/227 of the Constitution of India, praying for issuance of a writ in the nature of certiorari quashing order dated 22.7.2005 (Annexure P-1) under which the penalty of dismissal from police service has been imposed. The petitioner carried an appeal vide Annexure P-2, which however, has been dismissed vide other impugned order dated 23.11.2005 (Annexure P-3). The petitioner made a representation/revision (Annexure P-4), which was dismissed by the third impugned order dated 29.5.2006 (Annexure P-5). It Civil Writ Petition No. 9561 of 2009 2 seems that a mercy petition was filed thereafter, which has also been dismissed vide the fourth impugned order dated 4.6.2007 (Annexure P-7). The facts, in brief and as pleaded, are that the petitioner was enrolled as a Constable on regular basis in Punjab Police on 22.10.1991. In para-4 of the petition, it has been pleaded that the petitioner suffered from severe pain in the spinal cord on 12.6.2004. The petitioner had to be hospitalized from 12.6.2004 to 15.7.2004 and remained hospitalized further from 10.10.2004 to 21.10.2004. During the later period, the petitioner suffered from mental depression also. The petitioner, on account of absence from duty without leave, was proceeded against in ex- parte proceedings and penalty of dismissal from service was imposed vide the first impugned order (Annexure P-1). It, thus, transpires that the petitioner remained absent without leave from 12.6.2004 till the passing of order of dismissal on 22.7.2005 i.e. for more than 1 year and 1 month. The order of dismissal from service has been affirmed while dismissing the appeal of the petitioner, review/representation and mercy petition vide the other impugned orders, the particulars of which have been given herienabove. Learned counsel for the petitioner has made two contentions; the first being that absence from duty cannot be construed as a grave misconduct under Rule 16.2 of the Punjab Police Rules, 1934 (for short 'the Rules'). On the second count, it has been argued that the penalty is disproportionate to the offence committed by the petitioner and, therefore, a lenient view should have been taken. Learned counsel for the petitioner has not disputed the fact Civil Writ Petition No. 9561 of 2009 3 that the petitioner just went absent without leave on 12.6.2004 and remained continuously absent thereafter. Thus, the act of willful absence for more than one year has been admitted. Rule 16.2 of the Rules, to which reference has been made by the learned counsel for the petitioner, reads as under:- “16.2. Dismissal -- Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. In making such an award regard shall be had to the length of service of the offender and his claim to pension. (2) xx xx xx xx xx (3) xx xx xx xx xx” While referring to the aforesaid Rule, learned counsel for the petitioner has relied on a Division Bench judgment of this Court in The State of Punjab v. Parkash Chand, Constable, 1992(1) SLR 174, to contend that absence from leave does not amount to gravest act of misconduct. In this regard, reference has been made to para-11 of the judgment. I have considered the contentions of the learned counsel for the petitioner and have gone through the petition. In the cited case, the Constable absented from duty for a little less than 2 months. The appeal filed by the State was dismissed by this Court on the ground that misconduct simpliciter and grave misconduct must be distinguished. It has further been held in para-9 of the judgment that gravest act of misconduct is not capable of being put in a strait jacket or confined to a definition, however, it must relate to an action which is of Civil Writ Petition No. 9561 of 2009 4 the utmost gravity and grossly flagrant. It implies a matter of utmost seriousness. It has further been held in para-10 of the judgment that it is essential for the the Punishing Authority to apply its mind and record a specific finding as to whether the conduct of the delinquent official, which has been complained of, is of such a grave nature that it must lead inflexibly to his dismissal. In the case dealt with by this court, in the cited judgment, the order passed by the Punishing Authority did not indicate as to the requirement of Rule 16.2 of the Rules, as discussed above, and it had not recorded a finding that the act of the delinquent official amounted to gravest act of misconduct, which required his dismissal from service. In the case in hand, however, the Punishing Authority has taken note of the fact that the petitioner had been absent from duty since 12.6.2004 continuously. It has further been recorded that this action of remaining absent willfully is proof of indiscipline and carelessness, which is highly condemnable and punishable. A departmental inquiry was conducted, however, the petitioner did not participate therein and had to be proceeded against ex-parte. The petitioner was given a show cause notice, which was received by the petitioner, asking the petitioner to give his response within 10 days. The petitioner was also given an opportunity of being heard in person at the stage of imposing punishment and passing of order (Annexure P-1). It was also made clear to the petitioner that if he did not give any reply in writing within the stipulated period, or he did not appear in person, it would be deemed that he was admitting the charges and order of proposed punishment of dismissal from service would be Civil Writ Petition No. 9561 of 2009 5 issued. The petitioner neither gave his reply in writing nor came present. Not only this, the impugned order (Annexure P-1) has also considered the past service record of the petitioner since his recruitment on 22.10.1991. The petitioner remained absent for more than 296 days from 16.4.2001 to 22.7.2001, wherefor punishment of forfeiture of three years service, permanently, was imposed in the year 2002. Thereafter, the petitioner remained absent from 26.9.2001 to 22.4.2002 i.e. for 6 months and 22 days, for which a punishment of forfeiture of six years of service was imposed in the year 2003. Again, the petitioner remained absent from 4.10.2000 to 23.10.2000 i.e. for 19 days, for which punishment of forfeiture of one years service was imposed in the year 2003. Again, proving to be of incorrigible nature and having no intention to improve his conduct, the petitioner went absent from 10.7.2002 to 2.9.2002 i.e. for one month and 23 days, for which penalty of forfeiture of 2 years service was imposed in the year 2004. Still further, the petitioner had remained absent for another 4 days, for which penalty of forfeiture of one years service was imposed in the year 2004. Noticing all the above recorded punishments in the impugned order (Annexure P-1), the Senior Superintendent of Police, Ludhiana, has recorded that the petitioner is habitual absentee and an incorrigible employee. While dealing with the appeal of the petitioner, the appellate Authority has recorded that the petitioner had not even sent an application Civil Writ Petition No. 9561 of 2009 6 for leave. The appellate authority has further taken note of the past misconduct and the misconduct at issue, whereafter, it has been recorded that it was a serious misconduct in the police department. Likewise, while dealing with the revision/representation, Inspector General of Police, Jalandhar Zone, Jalandhar, has again made a reference, in detail, to the misconduct of the petitioner. It has been recorded that the petitioner was a deserter. The plea of illness taken by the petitioner was not tenable. The medical certificates produced by the petitioner were managed and were submitted late at revision stage to mislead the authorities. Considering the facts and circumstances noticed above, it becomes clear that the judgment in the cited case [Parkash Chand (supra)] is clearly distinguishable and would have no application in favour of the petitioner. The Hon'ble Supreme Court of India has dealt with somewhat similar circumstance while dealing with Maan Singh v. Union of India and others, (2003) 3 Supreme Court Cases 464. The following needs to be noticed from para-11 of the judgment:- “11. Relying on State of Punjab v. Ram Singh Ex- Constable, (1992) 4 SCC 54, one of the arguments advanced before us is that it is only in cases where the misconduct is of the gravest kind an order of dismissal shall be made. This case was decided in the context of rule 16.2(1) of the Punjab Police Manual, 1934, Vol. II. The said Rule reads as follows: Civil Writ Petition No. 9561 of 2009 7 “Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. In making such an award regard shall be had to the length of service of the offender and his claim to pension.” After analysing the said provision, this Court in Ram Singh case held that Rule 16.2(1) consists of two parts, firstly, dismissal shall be awarded for the gravest acts of misconduct and secondly, cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The second part is referable to a misconduct which, by itself, may not warrant an order of dismissal and may be a ground to take a lenient view of giving an opportunity to reform and even after giving such opportunities, if the delinquent officer is proved to be incorrigible and found completely unfit to remain in service then in order to maintain discipline in the service appropriate punishments can be given. Therefore, when the charge against the appellants in each of these cases is habitual absence for long periods on several occasions unauthorisedly, the view taken by the disciplinary authority is justified.” The first argument of the petitioner, accordingly, has to be rejected. The portion of the judgment of the Hon'ble Supreme Court of India, extracted above, clearly establishes that the action taken by the respondents was justified and no fault therein can be found. In regard to the second argument addressed by the learned counsel for the petitioner - Re: disproportionate penalty, I am of the considered opinion that the case of the petitioner does not call for a Civil Writ Petition No. 9561 of 2009 8 judicial review. Other than the fact that as many as 5 penalties had been imposed earlier for similar misconduct and the conduct of the petitioner had shown incorrigibility, the misconduct at issue i.e. absence for more than 1 year, is sufficient not to call for a lenient view. The petitioner was serving a disciplined force. The Hon'ble Supreme Court of India has dealt with a similar issue while dealing with Union of India and others v. Ghulam Mohd. Bhat, (2005) 13 Supreme Court Cases 228, wherein it has been held that overstay by persons belonging to disciplined forces needs to be dealt with sternly. In that case, the employee had been absent for 300 days without any justifiable reason and, therefore, it was held that removal from service suffers from no infirmity and the High Court was not justified in interfering with the same. For exact reference, para-9 of the judgment is reproduced therefrom:- “9. This Court had occasion to deal with the cases of overstay by persons belonging to disciplined forces. In State of U.P. v. Ashok Kumar Singh (1996 (1) SCC 302), the employee was a police constable and it was held that an act of indiscipline by such a person needs to be dealt with sternly. It is for the employee concerned to show how that penalty was disproportionate to the proved charges. No mitigating circumstance has been placed by the appellant to show as to how the punishment could be characterized as disproportionate and/or shocking. It has been categorically held that in a given case the order of dismissal from service cannot be faulted. In the instant case the period is more than 300 days and that too without any justifiable reason. That being so the order of removal from service suffers from no infirmity. The High Court Civil Writ Petition No. 9561 of 2009 9 was not justified in interfering with the same. The order of the High Court is set aside. The appeal is allowed but under the circumstances there shall be no order as to costs.” I am of the considered opinion that the impugned orders do not call for judicial review. The impugned order (Annexure P-1) clearly says that the petitioner was duly made aware of the fact that he was being proceeded against in a departmental inquiry. The petitioner, however, chose not to join the inquiry proceedings. Again, a show cause notice was issued before dealing with the issue of proposed punishment. Again, the petitioner did not join the proceedings and the order had to be passed ex- parte. It seems that the impugned order (Annexure P-1) was served whereafter, appeal, review/representation and mercy petition had been filed. The impugned orders are speaking orders giving valid reasons. Principles of natural justice have been observed before taking action against the petitioner. Learned counsel for the petitioner has not been able to show any legal infirmity or perversity in the impugned orders. In view of the above, the petition is dismissed in limine. July 8, 2009 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?