R.S.A. No.3874 of 1997 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.3874 of 1997 (O&M) Date of Decision:29.07.2010 Haryana State through Collector, Gurgaon and others .....Appellants Vs. Tirath Ram .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. K.C. Bhatia, Additional Advocate General, Haryana for the appellants. Mr. Jaivir Yadav, Advocate for the respondent. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 8.9.1997 passed by the Court of learned Additional District Judge, Gurgaon whereby he set aside the judgment/ decree dated 19.9.1996 rendered by the Court of learned Civil Judge (Junior Division), Gurgaon and decreed the suit of the plaintiff for declaration to the effect that the order of dismissal dated 20.10.1993 and the order dated 3.2.1994 whereby his appeal was rejected are illegal and not binding on him and he is deemed to be in service of the defendants, but he shall not be entitled to back-wages. The facts are these: the plaintiff being absent from duty from 9.8.1992 to 16.10.1992, the Superintendent of Police, Faridabad ordered inquiry against him. The Inquiry Officer submitted his report without R.S.A. No.3874 of 1997 (O&M) -2- providing a reasonable opportunity to the plaintiff. On the basis of such findings of the Inquiry Officer, the plaintiff was dismissed from service vide order dated 20.10.1993. Feeling aggrieved therewith, the plaintiff preferred an appeal to the Deputy Inspector General of Police, Gurgaon Range, Gurgaon, who rejected the same in utter violation of the rules. The absence of the plaintiff was unwilful, unintentional and bonafide for the reason that he remained under treatment during that period. The dismissal order is against Punjab Police Rule 8.4 and the alleged act of absence is not a gravest act of misconduct. On these allegations, the suit has been filed for declaration to the effect that the findings of the Inquiry Officer, the dismissal order dated 20.10.1993 and rejection of appeal communicated vide letter No.1246 dated 3.2.1994 are illegal, ultra-vires and not binding on the rights of the plaintiff and he is in continuous service of the defendants with all back-wages and benefits available to him. The defendants in their joint written statement, while controverting the averments contained in the plaint have inter-alia pleaded that the Inquiry Officer had delivered summary of allegations etc. to the plaintiff and after recording prosecution evidence, framed charge and got it approved from the Superintendent of Police and after recording the statements of defence witnesses and considering the written statement, he submitted his findings holding the plaintiff guilty. Thereafter, a show cause notice was given to the plaintiff. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the order dated 20.10.93 and 3.2.94 whereby plaintiff's service and his appeal was dismissed was null, R.S.A. No.3874 of 1997 (O&M) -3- void and illegal? OPP 2. Whether the plaintiff has no cause of action to file the present suit? OPD 3. Whether the suit of the plaintiff is not maintainable in the present form? OPD 4. Whether the civil court has no jurisdiction to try the present suit? OPD 5. Relief. After examining the evidence and hearing the learned counsel for the parties, the learned trial Court dismissed the suit. Feeling aggrieved therewith, the plaintiff went up in appeal, which was accepted by the Court of learned Additional District Judge, Gurgaon. Being dissatisfied therewith, the defendants have preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. On behalf of the defendants- appellants, it has been strenuously urged by Mr. K.C. Bhatia, learned Additional Advocate General, Haryana that in the inquiry proceedings, the plaintiff was given full opportunity to defend his case. He had been an habitual absentee as is being evidenced by Ex.D16 to Ex.D26. Thus, by no stretch of imagination, the impugned orders could be faulted with. To overcome these submissions, Mr. Yadav maintained that primarily, the afore-mentioned documents have not been duly proved in a manner as provided by law. To crown it all, the record is quite barren to show that the previous absence reports were put to the plaintiff either during R.S.A. No.3874 of 1997 (O&M) -4- inquiry or in the show cause notice and that being so, the punishing authority has gravely erred in taking the same into consideration. To buttress this stance, he has relied upon Mahipat v. The State of Haryana and others, 1994(3) Recent Services Judgments 132 and State of Haryana v. Mohinder Partap, 1997(1) Recent Services Judgments 727. These contentions merit acceptance for the discussion to follow hereunder. At the fag end of the inquiry report Ex.P1, it has been mentioned that Constable Tirath Ram, No.1243 is an habitual absentee of his own accord and without any rhyme or reason. This clearly indicates that the past conduct with regards to absenteeism of the plaintiff- respondent was also taken into consideration by the Inquiry Officer. In Ex.P2, the impugned order dated 20.10.1993, it has been mentioned that “no regard can possibly be had for his length of service as his conduct has been far from satisfactory.” To me, it appears that this observation in fact is based upon the words referred to hereinbefore from the inquiry report Ex.P1. To put it differently, the past conduct of alleged absenteeism had influenced the mind of the punishing authority. On reading between the lines, it transpires from the show cause notice Ex.D12 that there is not even a shred or remote reference of the fact that the plaintiff- respondent had been habitual absentee. In other words, the former occasions on which, he had absented, do not find mention in this show cause notice. Thus to say the least of it, there is no evidence worth mention in proof of the fact that before taking into consideration Ex.D16 to Ex.D26 relating to the past absenteeism of the plaintiff- respondent, he was apprised or made aware of it and that being so, R.S.A. No.3874 of 1997 (O&M) -5- by no stretch of speculation, he could have been expected to explain his past conduct in this regard. In Mahipat's case (supra), while awarding the punishment of dismissal, the authority did take into consideration that the petitioner was an habitual absentee from duty and was earlier punished six times according to the record. It was held that the punishing authority did take into consideration the past record of the petitioner though there was nothing on the record that the petitioner was ever made aware of the fact that while awarding the punishment of his dismissal, his previous record would be taken into consideration. It was laid down that the action was violative of the mandatory provisions of Punjab Police Rule 16.24(1) and absence from duty in a disciplinary force would be a gross misconduct, but mere fact of absence from duty by itself may not amount to gross misconduct. The absence is to be seen in totality of the circumstances. In The State of Mysore v. K. Manche Gowda, AIR 1964 Supreme Court 506, it has been held as under:- “Under Art. 311(2) a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action. If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a R.S.A. No.3874 of 1997 (O&M) -6- particular punishment; he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment is mainly based upon the previous record of the Government servant and that is not disclosed in the notice, it would mean that the main reason for the proposed punishment is withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. What the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know that period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he R.S.A. No.3874 of 1997 (O&M) -7- was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. The Court cannot accept the doctrine of “presumptive knowledge” or that of “purposeless enquiry”, as their acceptance will be subversive of the principle of “reasonable opportunity”. Therefore, it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation.” Adverting to the instant one, the defendants- appellants have gone to the extent to show previous absenteeism of the plaintiff- respondent by tendering Ex.D16 to Ex.D26 though there was no such plea in the written statement. This evidence is affirmative of the fact that indeed the previous conduct of the plaintiff- respondent had weighed with the mind of the punishing authority while passing the impugned order. Ex.D12 show cause notice, as noted supra, did not find mention of the previous record relating R.S.A. No.3874 of 1997 (O&M) -8- to absence of the plaintiff- respondent on earlier occasions. The proposed punishment appears to have been based upon the previous record, which has not been disclosed in Ex.D12. So, it was not possible for him to know that his past record would also be taken into consideration while awarding punishment. If such record had been unfolded in the show cause notice, it is possible that he would have explained it. May be that it was the previous record which had prejudiced the mind of the punishing authority for taking such a harsh decision. The absence period of the plaintiff- respondent is of 68 days as per Ex.P1. It implies that the main reason for the punishment had been withheld from the knowledge of the plaintiff- respondent. It is not the point that his explanation would have certainly been accepted but it was to see whether he has been afforded an opportunity to furnish his explanation qua the past record. The punishing authority was obligated to give the plaintiff- respondent a reasonable opportunity to show cause against the evidence in relation to his past conduct, which was being taken into consideration, while passing the impugned order. Sequelly, it is held that the findings returned by the learned lower appellate court warrant no interference and are affirmed. As a sequel of the above discussion, this appeal fails and is dismissed with no order as to costs. Since the main appeal has been decided, as such, all pending civil miscellaneous applications, if any, also stand disposed of. July 29, 2010 ( HARBANS LAL ) renu JUDGE Note: Whether this case is to be referred to the Reporter? Yes/No