IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
R.S.A. No.2348 of 2005
Date of Decision: 5.3.2009
Parjinder Singh.
....... Appellant through Shri
H.S.Gill, Senior Advocate
with Shri K.B.S.Mann and
Shri Vivek Goyal,
Advocates.
Versus
The Punjab State and others.
....... Respondents through Shri
N.S.Virk, Additional
Advocate General, Punjab.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
This appeal is directed against the judgments and decrees dated
22.5.2004 and 17.2.2005 passed respectively by the Additional Civil Judge
(Senior Division), Kapurthala (hereinafter described as `the trial Court’) and
the District Judge, Kapurthala (referred to hereinafter as `the First Appellate
Court’) whereby the suit and the appeal of the plaintiff-appellant have been
dismissed.
The appellant filed a suit praying therein that order dated
8.5.1997 passed by the Senior Superintendent of Police, Jagraon (for short,
the punishing authority’) dismissing him from service, as also order dated
R.S.A.No.2348 of 2005
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….
27.8.1997 vide which Deputy Inspector General of Police, Ludhiana Range,
Ludhiana (for brevity, `the appellate authority’) dismissed his appeal and
order dated 10.2.1998 of the Inspector General of Police, Punjab, whereby
his revision was rejected, be declared as illegal, null & void,
unconstitutional, discriminatory, mala fide, against the service rules, unjust,
against principles of natural justice & ineffective and that he continues in
service as Constable and was entitled to all rights, privileges and other
service benefits.
The appellant was appointed as Constable in Punjab Police on
16.11.1992. According to him, he fell ill on 19.7.1996 and after informing
his superior, he went to Raikot town for medical help from where he was
advised to go to Jalandhar for seeking expert medical treatment. It was
averred by the appellant that after recovery, he joined duty on 13.8.1996,
but he was again taken ill on 20.10.1996 and with the permission of his
Station House Officer, went to Jalandhar for treatment and reported back on
6.11.1996. However, the aforesaid periods were treated as absence from
duty without permission and an enquiry was conducted, which, according to
him, was contrary to the provisions of law and violative of the principles of
natural justice. In the said enquiry, the appellant was held guilty of the
charges levelled against him and consequently, the punishing authority
issued a show cause notice to him on 12.4.1997. A reply to the show cause
notice was submitted by the appellant wherein he pleaded innocence, but
the punishing authority found the same unsatisfactory and passed the order
of dismissal on 8.5.1997 and it was also directed that the periods from
R.S.A.No.2348 of 2005
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19.7.1996 to 12.8.1996 and 20.10.1996 to 6.11.1996 be not treated as duty
period. The appeal and the revision filed by the appellant were dismissed by
the appellate and revisional authorities, compelling him to file the suit. It
was also alleged that the reply submitted by the appellant was not
considered at all and that the punishing authority, while passing the order of
dismissal, took his previous conduct into consideration.
Upon notice, the respondents appeared and filed their written
statement denying the averments of the appellant. The factum of the
appellant joining service on 16.11.1992 was admitted and it was stated that
he was not a good police official and was a habitual absentee. The details
of absence as pleaded in the written statement were as follows:-
1. From 17.5.1994 to 19.5.1994 = 3 days
2. From 8.5.1994 to 11.5.1994 = 4 days
3. From 15.6.1995 to 19.6.1995 = 4 days
4. From 30.7.1995 to 31.7.1995 = 2 days
5. From 17.8.1995 to 24.8.1995 = 7 days
6. From 24.10.1995 to 30.10.1995= 6 days
7. From 10.8.1995 to 12.8.1995 = 2 days
8. From 14.1.1996 to 16.1.1996 = 2 days
9. From 27.1.1996 to 28.1.1996 = 1 day
Besides the above periods of absence which were treated as
leave without pay, the appellant was stated to have remained absent from
duty with effect from 18.11.1995 to 11.1.1996, i.e., for 55 days for which a
regular departmental enquiry was conducted against him and his one year
R.S.A.No.2348 of 2005-4-
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approved service was forfeited by the punishing authority vide order dated
1.11.1996 and the period of absence was treated as non-duty period.
The respondents also averred that the appellant had absented
himself from 13.3.1996 to 30.3.1996, i.e., for 16 days, 18 hours and 10
minutes, which period was treated as non-duty period.
It was denied that the appellant had gone for medical treatment
during the periods of absence in question after informing his superiors and
since his absence from duty was willful, an enquiry was got conducted in
which an appropriate opportunity was given to him to plead his case and
after following the entire procedure of law and taking into account the
periods of absence from duty, the order of dismissal was passed. The orders
by which his appeal and the revision were dismissed were also sought to be
justified on the ground that the same were in conformity with the provisions
of law.
Both the parties went to trial on the following issues:-
1. Whether the order dated 8.5.1997, order dated 27.8.1997 and
order dated 10.2.1998 are illegal, void, unlawful?OPP
2. If issue no.1 is proved, whether the plaintiff is entitled to
the benefit of service?OPP
3. Whether the present suit is not maintainable in the present
form?OPD
4. whether the court has no jurisdiction to try the suit?OPD
5. Relief.
After appraisal of the evidence on record, the trial Court, as
R.S.A.No.2348 of 2005-5-
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also the First Appellate Court, came to the conclusion that the orders
assailed by the appellant were passed after following the due process of law
and after establishing the charges against him. Consequently, the suit and
the appeal of the appellant were dismissed.
This has resulted in the instant appeal by the appellant.
Learned counsel for the appellant referred to the order of
dismissal passed by the punishing authority to contend that the previous
conduct of the appellant had been taken into consideration while passing the
same even though the charge against him pertained to the periods from
19.7.1996 to 12.8.1996 and 20.10.1996 to 6.11.1996. He further
contended that once the charge was limited to these periods, the previous
conduct could not have been taken into consideration without the same
being put to him and without affording him an opportunity to rebut the
allegations of previous absence. To bring home this argument, learned
counsel for the appellant relied upon a Division Bench judgment of this
Court in the Inspector General of Police, Punjab Versus Balbir Singh, 1973
(2) S.L.R. 271, wherein it was observed in paragraph 10 as under:-
“10. We feel that it is not necessary to decide this question for
the simple reason that the order of the Inspector General of
Police in revision cannot be maintained, because while dealing
with the revision- cum- mercy petition, he took into
consideration the so- called chequered service records of the
petitioners which, as observed by the learned Single Judge, did
not form part of the charge and was not gone into by the
R.S.A.No.2348 of 2005-6-
….
Enquiry Officer and the petitioners were also not given any
opportunity to meet this aspect of the case. Consequently, in
view of the observations of their Lordships of the Supreme
Court in K. Mache Gowda’s case (supra) which were referred to
in Amar Nath’s case (supra), decided by the learned Single
Judge, the two writ petitions had to be accepted and the
revisional order of the Inspector General of Police had to be
quashed. It would be open to the Inspector General of police to
go into the whole question including the instructions of 1961
issued by the Inspector General of police, referred to above,
and to decide once again not only about the misconduct of the
two petitioners, but also about the proper punishment that is to
be inflicted. The question, whether in the circumstances of the
case, the departmental authorities could or could not arrive at
the conclusion that the misconduct of which the petitioners
were found to be guilty did or did not amount to gravest act of
misconduct within the meaning of rule 16.2 of the Rules must
be left open. Normally speaking, this court would be most
reluctant to go into the question of the nature of the misconduct
after the matter has been dealt with by the authorities, yet, there
may arise a case where the conclusion arrived at is such that the
same cannot possibly be maintained. However, as stated above,
it is not necessary for us to decide this point in the present case,
at this stage.”
R.S.A.No.2348 of 2005
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It was further contended by the learned counsel for the
appellant that in view of the law laid down in the aforementioned case, the
suit of the appellant deserved to be decreed by setting aside the orders which
were assailed therein.
On the other hand, learned counsel for the respondents referred
to the repeated absence of the appellant and contended that this amounted to
gravest act of misconduct within the meaning of Rule 16.2 of the Punjab
Police Rules (for short, `the Rules’) and that such a person, who was given
to absence from duty, could not be retained in the police force. That apart, it
was contended that the proper procedure had been followed before the
order of dismissal was passed. It was further submitted that the appellant did
not avail of the opportunities given to him by the enquiry officer and also
the officers, authorities concerned who passed the orders. Accordingly, it
did not lie in the mouth of the appellant now to say that the principles of
natural justice stood violated.
To support his contentions/ submissions, learned counsel for
the respondents placed reliance on State of U.P. And others Versus Ashok
Kumar Singh and anothers, AIR 1996 S.C. 736 and Maan Singh Versus
Union of India and others, (2003) 3 S.C.C. 464.
In Ashok Kumar Singh’s case (supra), it was observed in
paragraph 8 of the judgment as under:-
“We are clearly of the opinion that the High Court has exceeded
its jurisdiction in modifying the punishment while concurring
with the findings of the Tribunal on facts. The High Court
R.S.A.No.2348 of 2005-8-
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failed to bear in mind that the first respondent was a police
constable and was serving in a disciplined force demanding
strict adherence to the rules and procedures more than any other
department. Having noticed the fact that the first respondent has
absented himself from duty without leave on several occasions,
we are unable to appreciate the High Court’s observation that
his absence from duty would not amount to such a grave
charge. Even otherwise on the facts of this case, there was no
justification for the High Court to interfere with the punishment
holding that the punishment does not commensurate with the
gravity of the charge especially when the High Court concurred
with the findings of the Tribunal on facts. No case for
interference with the punishment is made out.”
In Maan Singh’s case (supra), their Lordships of the Apex
Court in paragraph 11 of the judgment observed as follows:-
“11. Relying on State of Punjab v. Ram Singh, Ex-Constable,
(1992) 4 S.C.C. 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:
`Dismissal shall be awarded only for the gravest acts of
misconduct or as the cumulative effect of continued
misconduct proving incorrigibility and complete
R.S.A.No.2348 of 2005-9-
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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.”
I have thoughtfully considered the rival contentions and have
gone through the whole record.
A perusal of the judgment of the trial Court reveals that the
R.S.A.No.2348 of 2005
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appellant was given sufficient opportunity to off-set the charges against him.
The testimony of the appellant himself is revealing and the same has been
noticed in paragraphs 8 and 9 of the judgment of the trial Court, which are
extracted hereunder so as to understand with some clarity as to how the
enquiry officer dealt with the matter:-
“8. In his cross-examination, PW2 has stated that it is correct
that departmental inquiry against him was conducted. He has
further deposed that it is incorrect that charge sheet, list of
documents, list of witnesses was supplied to him during the
inquiry. But from the perusal of the inquiry file, it is clear that
plaintiff has got recorded his statement on 7.1.1997, to the
effect that he was supplied copy of charge sheet, copy of list
of witnesses as per rules and list of witnesses on the inquiry
file also bears the signatures of the plaintiff on 7.1.1997, to
the effect that he received copy of list of witnesses on
7.1.1997. In his cross-examination, PW2 has stated that it is
incorrect that he was given opportunity to cross-examine the
witnesses during the inquiry. But from the perusal of inquiry
file, it is clear that plaintiff has been given opportunity to
cross-examine all the witnesses,though the plaintiff has not
cross-examined the witnesses and plaintiff has signed all the
pages on which evidence of the witnesses were recorded
during the inquiry and he has put his signatures to the effect
that he does not want to cross-examine the witnesses. In his
R.S.A.No.2348 of 2005-11-
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cross-examination, PW2 has admitted that it is correct that he
was given show cause notice before passing the impugned
order by S.S.P.Jagraon and he have reply to the show cause
notice. PW2 has stated in his cross-examination that he was
not given personal hearing by S.S.P. Jagraon before passing
the impugned order. From the perusal of the show cause
notice which is in the inquiry file, it is clear that in the show
cause notice, plaintiff was directed to appear in person before
S.S.P.Jagraon for personal hearing within 10 days from the
service of show cause notice. From the perusal of impugned
order passed by S.S.P. Jagraon dismissing plaintiff from the
service it is clear that plaintiff did not appear in person before
S.S.P.Jagraon for personal hearing.
9. Plaintiff has also examined Dr.Amarjit Singh as PW1, who
has proved on the file medical certificate issued by him from
19.7.96,which is Ex.P1 and medical certificate issued for two
weeks on 20.10.96, which is Ex.P2. In his cross-examination,
PW1 has admitted that he did not appear before the inquiry
officer during inquiry against Parjinder Singh plaintiff. PW1
has also stated that original record of his clinic regarding
medical certificate and treatment given to the plaintiff was
misplaced during renovation of his clinic during the year
1997.”
The above extracted portion of the judgment of the trial Court
R.S.A.No.2348 of 2005
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shows that the appellant himself left no room for doubt that sufficient
opportunity was given to him to explain his conduct. It is apparent that the
appellant was not interested in availing of the opportunities given to him by
the enquiry officer to meet the allegations against him. In this view of the
matter, the contention of the learned counsel for the appellant that the
principles of natural justice have been violated simply because other
material, i.e., the previous record was not put to the appellant, but which
formed the basis of the order of dismissal, can hardly be termed to be a
legitimate one. This has to be tested in view of the details of the repeated
absence which were given in the written statement, which have been
reproduced hereinabove. Even though the appellant denied the details of the
absence in his replication, yet, he did not produce any evidence to show that
the same were false. The conduct of the appellant during the course of
enquiry was such that it amounted to virtual defiance of the proceedings. He
did not even produce the medical evidence in support of his claim that he
was ill and except for the mode of denial that he was in, there was no other
evidence produced. The observations of the Apex Court made in Ashok
Kumar Singh’s case (supra) that a person belonging to the disciplined force
is expected to adhere to certain norms, are, therefore, clearly attracted to the
facts of this case and it cannot be said that the respondents either exceeded
themselves or violated the principles of natural justice while basing their
opinion on the previous conduct of the appellant. It is the prerogative of the
employer to conclude whether he wishes to retain a person in service if he is
proved to be a dead wood or not and especially in cases where the service of
R.S.A.No.2348 of 2005
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a disciplined force is at stake, the standard of adherence to the norms of duty
are much more challenging and demanding.
On the basis of the above discussion, no infirmity is found in
the findings recorded by the Courts below.
No substantial question of law, therefore, arises for
determination in this appeal, which is held to be without any merit and is
dismissed.
March 05,2009 ( Mahesh Grover ) "SCM" Judge