CWP Nos. 2925 of 1994 and 16213 of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 24.5.2010 1.CWP No.2925 of 1994 Constable Sita Ram ...Petitioner VERSUS State of Haryana & Others …Respondents 2.CWP No.16213 of 1995 Ex Constable Kartar Singh No.637 ...Petitioner VERSUS State of Haryana & Others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.Gaurav Mohunta,Mr.Amandeep Singh, Mr.SK Bansal, Advocates for petitioners Mr.RKS Brar, Addl.A.G., Haryana Permod Kohli, J. (Oral) This order will dispose of the aforesaid two writ petitions as common questions of law and facts are involved. In CWP No.2925 of 1994, the petitioner was enrolled as Constable in Haryana Police. He remained absent from duty on 27.11.89 to 9.4.90. Departmental enquiry was conducted against him. Ultimately, he was dismissed from service vide order dated 5.8.92 (Annexure P-1) after rendering about 18 years of service. In CWP No.16213 of 1995, the petitioner was enrolled as Constable in the Haryana police on 1.2.1988. While posted at Camp Office Guard, Panipat as a general duty constable, the petitioner was relieved of his duties on 4.9.1993 on his transfer to PS/City Panipat from SP Residence Camp CWP Nos. 2925 of 1994 and 16213 of 1995 2 Office Guard. The petitioner did not report at his new place of posting i.e. PS City Panipat. He reported back on 20.9.93 i.e. after absence of 16 days. A departmental enquiry was conducted against the petitioner. Ultimately, he was found guilty and punishment of dismissal from service has been awarded to him vide order dated 5.4.1994 (Annexure P-2). Both the petitioners have challenged their dismissal from service. It is agreed to by the learned counsel for the parties that the issue involved in this writ petition is squarely covered by a Division Bench judgment of this Court in the case of Dhan Singh vs. State of Haryana and others, 2009 (2) SLR 40 wherein following observations/directions have been made:- “17.The petitioner’s misconduct for remaining absent on two occasions has been established. Even if the act of the petitioner is not considered as “gravest misconduct” as it does not fall within the purview of Explanation appended to rule 16.2, it definitely is an act which constitutes misconduct. There are at least two acts of misconduct. Cumulative efffect of misconduct also makes a Police Officer incorrigible and unfit for police service. However, the authorities have not applied their mind and not taken into consideration the length of service of the petitioner and his right to pension while awarding the CWP Nos. 2925 of 1994 and 16213 of 1995 3 punishment. It has been stated by the petitioner in ground (c ) of this petition that he has rendered 11 years 9 months service. No rule has been brought to our notice that the petitioner is not entitled to any pensionary benefits for rendering about 12 years of service. Giving consideration to the length of service, the right to pension is inherent under Rule 16.2 itself and thus it cannot be ignored. The authorities having failed to adhere to the rule while awarding punishment renders the impugned order of punishment illegal and unwarranted. It is also settled law that when a relevant provision is given go by, it amounts to arbitrary exercise of power and such an order is not sustainable. In view of the above circumstances and for the above reasons, we set aside the impugned order of punishment dated 27.8.2003 (Annexure P-2), the order dated 22.6.2004 (Annexure P-5) passed by the Appellate Authority and the order dated 20.8.2005 passed by the Revisional Authority and direct the Disciplinary Authority to reconsider the question of CWP Nos. 2925 of 1994 and 16213 of 1995 4 punishment to be awarded to the petitioner, keeping in view service rendered by him i.e. 11 years and 9 months and his right to pension and take into consideration these factors and thereafter a fresh order of punishment be passed. Let fresh order be passed within a period of three months of the receipt of a certified copy of this order. However, the order of reinstatement shall remain in abeyance till fresh consideration is accorded and will depend upon the outcome of the fresh consideration.” In view of the above the orders impugned in both the writ petitions are hereby quashed and the Disciplinary Authority is directed to reconsider the question of punishment to be awarded to the petitioners, keeping in view service rendered by them and their right to pension and take into consideration these factors and thereafter a fresh order of punishment be passed. Let fresh order be passed within a period of three months of the receipt of a certified copy of this order. However, the order of reinstatement shall remain in abeyance till the passing of fresh order. Copy of this order be placed on record of each concerned file. (PERMOD KOHLI) JUDGE 24.5.2010 MFK/sd