R.S.A.No. 1226 of 2003 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1226 of 2003 Date of decision: State of Haryana and others ......Appellants Versus Balwan Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Deepak Jindal, Advocate, for the appellants. Ms.Shashi Ghuman, Advocate for respondent **** SABINA, J. Plaintiff Balwan Singh had filed a suit challenging the order of dismissal from service dated 28.4.1994 and the orders passed in appeal and revision whereby the dismissal order was upheld. The case of the plaintiff, in brief, was that he had been enrolled as a Constable in police department on 13.4.1989. A departmental enquiry was held against the plaintiff on the allegation that he had remained absent from duty. On the basis of the same, R.S.A.No. 1226 of 2003 2 the plaintiff was ordered to be dismissed from service vide the impugned order dated 28.4.1994. The appeal and the revision filed by the plaintiff against the said order were dismissed. Defendants, in their written statement, averred that the plaintiff was guilty of gravest misconduct as he had remained absent from duty w.e.f. 2.9.1993 to 28.4.1994. After adopting due procedure, the plaintiff had been ordered to be dismissed from service. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the order of dismissal dated 28.4.1994, appellate order dated 16.9.1996 and revisional order dated 7.2.1997 are illegal, bad in law and not binding upon the plaintiff? OPP. 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff has no cause of action to file the present suit ? OPD 4. Relief.” The Civil Judge (Jr.Divn.) Hisar dismissed the suit of the plaintiff vide judgment and decree dated 5.2.2002. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was allowed vide judgment and decree dated 11.10.2002 passed by the Additional District Judge. Consequently, suit of the plaintiff was decreed. Hence, the present appeal by the defendants. Learned State counsel has submitted that the first Appellate Court had erred in decreeing the suit of the plaintiff. The plaintiff was ordered to be dismissed from service after adopting due R.S.A.No. 1226 of 2003 3 procedure as per law. The plaintiff was guilty of gravest misconduct as he had remained absent from duty for more than seven months. In support of his arguments, learned State counsel has placed reliance on Union of India and others vs. Dattalinga Toshatwad (2005) 13 SCC 709, wherein, it was held as under:- “8. The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16.6.1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed forco overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his Commanding Officer. We are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described R.S.A.No. 1226 of 2003 4 as disproportionate to the misconduct alleged.” Learned State counsel has further placed reliance on Ex Constable Jagbir Singh vs. State of Haryana (2006) 3 PLR 313, wherein, it was held as under:- "5. Having heard the learned counsel at considerable length, we are of the view that this petition is liable to be dismissed. A perusal of the Inquiry Report would show that a detailed inquiry was held in which number of witnesses including Dr.R.E.Pandey were examined. The petitioner has been given ample opportunity of hearing and to cross-examine the witnesses or put his case before the Inquiry Officer. In fact the petitioner had produced defence witness. After considering oral as well as documentary evidence, the Inquiry Officer had recorded the conclusion that the petitioner was absent from duty and the justification for absence was stated to be his illness. The certificate produced showing that the petitioner was ill have been found to be false and bogus, which were produced to raise the defence. T he punishing authority has further noticed that the certificates are not only bogus and false, but the certificates have been issued on different dates and even the disease given in the certificate are different. It has also been found that the constable of Commando Force usually go to Dr. R.E.Pandey for issuance of such certificates. It is well settled that this court cannot sit in appeal over the findings recorded by the Inquiry Officer as accepted by the punishing authority, appellate authority and the revisional authority. For the aforementioned purpose, reliance may be placed on a judgment of Hon'ble the Supreme Court in the case of B.C.Chaturvedi v. Union of India, 1996 (1) SCT 617: 1995 (6) SCC 749. Learned counsel for the petitioner has failed to disclose any illegality on the part of the Inquiry Officer in following the R.S.A.No. 1226 of 2003 5 procedure applicable to hold such inquiry or violation of any principle of natural justice, like refusal to cross- examine the witness or bringing on record the evidence by the petitioner. 6. We are further of the view the absence from duty from a disciplinary force like Commando Police is a misconduct as has been held by Hon'ble the Supreme Court in the case of Jai Singh vs. State of Rajasthan, AIR 1966 SC 492. It has been held that in the absence of any violation of Wednesbury pinciples as laid down by the Constitution Bench of Hon'ble the Supreme Court in Prashad vs. Union of India, 2006 (2) SCC 1, it is not for the Courts to interfere with the quantum of punishment. No such violation of those principles have been canvassed or pointed out warranting substitution of the view taken by the disciplinary authorities to that of our own view. Moreover, the petitioner has rendered about 7 years of service, which is full of absence for various period." Learned State counsel has also placed reliance on Anwar Singh vs. The State of Punjab and another 2009 (2) SCT 428, wherein, it was held as under:- "12. The submission of learned counsel for the appellant was that it was a single alleged misconduct against the appellant while the provisions of Section 16 (2) of the Rules, 1934 anticipate the multiple gravest acts of misconduct or the cumulative effect of continued misconduct, proving incorrigibility and complete unfitness for service. In other R.S.A.No. 1226 of 2003 6 words, it should have been more than one misconduct for which the punishment of dismissal from service can be awarded and not the single act of misconduct. 13.This submission is totally fallacious. It only means that if the appellant had absented himself intermittently for a couple of days, may be within a month or two, these acts of misconduct would fall within the mischief of Rule 16.2 Rules, 1934 being more than one, but continued absence from duty for more than three, four or six months does not constitute misconduct within the meaning of Rule 16.2 of the Punjab Police Rules. Such a submission is devoid of merit and does not appeal to reason. 14. The continued absence for such a long period was in itself gravest misconduct. Each day's absence amounted to an act of misconduct. The total absence for six months has to be considered as a multiple acts of misconduct. Not only this, when the charge-sheet was sent to him, the appellant did not appear. When he was sent notice by the Enquiry Officer, he did not appear. He did not join the proceedings. These acts of the appellant also amounted to gravest form of mis-conduct. Therefore, by no stretch of imagination, it can be said if the misconduct complained of against the appellant did not fall within the purview of Rule 16.2 of the Rules, 1934. The cumulative effect of continued absence from duty amounted to gravest act of misconduct proving incorrigibility and complete unfitness for service. Therefore, the appellant R.S.A.No. 1226 of 2003 7 was liable to be removed from service under Rule 16.2 of the Rules 1934 as the misconduct committed by the appellant was of gravest form poving his complete unfitness for service. 15. There is second limb of Rule 16.2 of the Rules, 1934 which lays down that while making such an award, regard shall be had to the length of service of the offender and his claim to pension." Learned State counsel has also placed reliance on Ex Constable Rekesh Kumar vs. The State of Haryana and others 1997 (3) RSJ 333, wherein, it was held as under:- "9. This brings us to the last contention raised on behalf of the petitioner that the punishment awarded was excessive in the facts and circumstances of the case. The misconduct of the petitioner was proved before the enquiry officer. The Disciplinary Authority firstly agreed with the findings of the enquiry officer, but then directed the enquiry to be filed. After complying with the requirements of the Rules and principles of natural justice, Deputy General of Police had come to the conclusion that misconduct has been established and the absence of 244 days, as aforestated, constituted an offence and mis-conduct of grave nature. The Authority consequently passed the impugned order which was not interfered with by the Inspector General of Police. Even before this Court there is nothing brought on record which could persuade us to take a view different than the one R.S.A.No. 1226 of 2003 8 which has been taken by the Authority concerned. Unauthorised absence for such a long period is misconduct of gravest nature. In this regard reference can be made to judgments of Hon'ble Supreme Court in the cases of Rai Bareli Kshetriya Gramin Bank vs. Bhola Nath and others 1997 (2) RSJ 525= JT 1997 (3) SC 717 and N. Rajarathinam vs. State of Tamil Nadu and another 1996 (4) RSJ 338= JT 1996 (8) SC 447. 10. The jurisdiction of this Court to interfere with the quantum of punishment has been explained by the Division Bench of this Court, after discussing the law, in the case of Constable Kushal Singh vs. Union of India and others. CWP No.4425 of 1996 decided on 28.7.1997 has held as under:- " It cannot be disputed that nature and extent of punishment to be imposed upon a delinquent official/ officer primarily falls in the domain of competent authority. Once it is shown on record that enquiry was conducted in accordance with rules and inconsonance with the principles of natural justice, the jurisdiction of the Courts to interfere in quantum of punishment awarded by the authorities concerned is a limited one. The quantum of punishment falls in the domain of the disciplinary authority as the authority is Jus Galdil in this regard." Looking at the facts of the present case and R.S.A.No. 1226 of 2003 9 jurisdiction of this Court to interfere in such matters, as indicated above, we see no room for use to interfere in the quantum of punishment awarded by the competent authority." Learned counsel for the respondent, on the other hand, has submitted that the dismissal order could only be passed for gravest acts of misconduct or for the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service as per Rule 16.2 of the Punjab Police Rules, 1934 as applicable to Haryana. As per the said Rule, absence from duty could not be termed as gravest misconduct. In support of her arguments, learned counsel has placed reliance on Dhan Singh vs. State of Haryana and others 2009 (1) RSJ 62, wherein it was held as under:- "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 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. 17. The petitioner's misconduct for remaining absent on R.S.A.No. 1226 of 2003 10 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 lease two acts of misconduct. Cumulative effect 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 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." Rule 16.2 of the Punjab Police Rules as applicable to the State of Haryana (the Rules for short) reads as under:- “Rule 16.2 for Haryana 16.2. Dismissal.- (1) Dismissal shall be awarded only for R.S.A.No. 1226 of 2003 11 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. “Explanation.- For the purposes of sub-rule (1), the following shall, inter alia, be regarded as gravest acts of misconduct in respect of a police officer, facing disciplinary action :- (i) indulging in spying or smuggling activities ; (ii) disrupting the means of transport or of communication; (iii) damaging public property ; (iv) causing indiscipline amongst fellow policemen ; (v) promoting feeling of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, community or language ; (vi) going on strike or mass casual leave or resorting to mass abstentions ; (vii) spreading disaffection against the Government ; and (viii) causing riots and the life.” The substantial questions of law that arise in this case are “whether absence from duty is a gravest misconduct and whether the Civil Court can interfere with the quantum of punishment awarded by the punishing authority?” Facts are not in dispute in the present case. The plaintiff R.S.A.No. 1226 of 2003 12 had joined as a Constable with the defendants on 13.4.1989. The plaintiff, however, absented from duty for more than seven months. Enquiry was ordered to be held against the plaintiff qua his absence. Despite service of notices on the plaintiff by the Enquiry Officer, he failed to appear before the Enquiry Officer. Consequently ex parte enquiry was held against the plaintiff. The Enquiry Officer vide report dated 25.3.1994 held that absence of the plaintiff from 2.9.1993 onwards was duly proved. Thereafter, a show cause notice was served on the plaintiff dated 28.3.1994. The plaintiff did not submit any reply to the show cause notice. The plaintiff was also directed to appear before the punishing authority on 25.4.1994 but he failed to appear. Consequently, the impugned order of punishment dated 28.4.1994 was passed by the punishing authority against the plaintiff. Appeal filed by the plaintiff was dismissed by Deputy Inspector General of Police vide order dated 16.9.1996 and revision filed by the plaintiff against the said order was dismissed by the Director General of Police vide order dated 7.2.1997. Thus, the plaintiff had remained absent from duty for a considerable period and the impugned order of dismissal from his service was passed after following due procedure of law. The jurisdiction of the Civil Court qua interference with the punishment order is very limited. The Civil Court was only required to see as to whether the punishing authority had passed the impugned order after following due procedure of law. The Civil Court cannot go into the merits of the case . So long as the finding of the punishing authority is based on some evidence collected during departmental enquiry then the Civil Court may not interfere with the R.S.A.No. 1226 of 2003 13 punishment order. Unless some defect is pointed out in the enquiry proceedings, the Civil Court cannot interfere with the punishment order. The finding recorded by the disciplinary authority is immune from interference within the limited scope of power of judicial review applicable to the Court. The plaintiff was a member of a disciplined force. Members of the police force cannot absent themselves from duty. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the police force. The plaintiff absented from duty w.e.f. 2.9.1993 and did not bother to even participate in the enquiry proceedings. In the facts and circumstances of the present case, the absence from duty by the plaintiff, who was a member of a disciplined force, amounts to gravest misconduct. As per Explanation to Rule 16.2 of the Rules, a police officer causing indiscipline amongst fellow policemen would be guilty of gravest misconduct. It has been held by the Division Bench of this Court in Jagbir Singh's case (supra) that absence from duty from a disciplinary force would amount to misconduct. The Court cannot sit in appeal over findings recorded by the Enquiry Officer as accepted by the punishing authority, appellate authority and revisional authority. The judgement relied upon by learned counsel for the respondent in Dhan Singh's case (supra) is not applicable to the facts of the present case as it was based on its own facts. In the said case, the petitioner had rendered more than 11 years of service and had remained absent from duty on two occasions for 22 days and 100 days. In the present case, the plaintiff had worked for about R.S.A.No. 1226 of 2003 14 more than four years and had thereafter absented for more than seven months. Plaintiff was not entitled to claim pension at that stage. The misconduct committed by the plaintiff rendered him unfit for police service. Learned first Appellate Court had erred in allowing the appeal filed by the plaintiff. The Civil Court could not interfere in the present case as the punishment order was passed after following due procedure of law and in the facts and circumstances of the present case, the misconduct committed by the plaintiff could be termed as gravest misconduct and the plaintiff was unfit for police service. The substantial questions of law that arise in this appeal stand answered accordingly. Hence, this appeal is allowed. The impugned judgment and decree dated 11.10.2002 passed by the first Appellate Court are set aside and the judgment and decree dated 5.2.2002 passed by the trial Court are upheld. Consequently, the suit filed by the plaintiff stands dismissed. (SABINA) JUDGE April , 2011 anita