JUDGMENT
G.R. Majithia, J.
1. The defendant-appellant has assailed the judgment and decree of the first appellate Court reversing on appeal those of the trial Judge and decreeing the suit of the plaintiff respondent for declaration that the order of dismissal from service was illegal in this regular second appeal.
2. Brief facts : –
The plaintiff-respondent (hereinafter the plaintiff) joined the Punjab Police Force as a Constable on September 14, 1966; that he was posted as police Constable in Police Lines, Ferozepur in 1983; that he absented himself from March 6, 1983 to April 11, 1983; that a regular departmental equiry was initiated against him and the Superintendent of Police vide his order dated July 13, 1984 ordered his dismissal from service; and that he filed an appeal against the order of dismissal,which was dismissed by the Deputy Inspector General of Police, Ferozepur Range, Ferozepur Cantt. vide order dated August 9, 1984, The plaintiff assailed these orders being illegal and null and void in the civil suit giving rise to this appeal.
3. The defendant-appellant (hereinafter the defendant) controverted the pleas of the plaintiff and maintained that a regular enquiry was conducted according to the procedure prescribed under Rule 16.24 of the Punjab Police Rules, 1934 (for short, the Rules) and the order of dismissal was legal and valid.
4. The pleadings of the parties gave rise to the following issues :-
1. Whether the impugned order dismissing the plaintiff from service and the rejection of his appeal are illegal, null and void etc. on the grounds raised in para 5 of the plaint ? OPP
2. Whether a valid notice under Section 80 C. P. C. has been served on the defendant ? OPP
3. Whether the suit is not maintainable in the present form ? OPD
4. Whether the suit is barred by nonjoinder of necessary parties ? OPD
5. Whether the suit is barred by limitation ? OPP
6. Whether the suit is not properly valued ? OPD
7. Relief.
5. The trial Judge answered issue No. 1 against the. plaintiff and the remaining issues against the defendant and in view of the findings under issue No. 1, dismissed the suit.
6. The plaintiff assailed the judgment and decree of the trial Judge in first appeal. The first appellate Court found that the departmental enquiry held against the plaintiff was valid and no flaw-could be found in the procedure adopted by the Enquiry Officer while holding the departmental enquiry. It further found that the charge against the plaintiff for remaining wilfully absent from duty stood proved. However, the dismissal order was set aside on the ground that the procedure provided in Rule 14.11-A of the Rules was not followed and the punishing authority did not take into consideration the mandatory provisions of Rule 16.2(1) while passing the order of dismissal.
7. Indisputably, (he plaintiff remained absent from duty for 37 days without prior permission of the competent authority and it amounted to misconduct. A charge was framed and regular departmental enqiry was held as enjoined by Rule 16.24 of the Rules. The Enquiry Officer found the charge as proved and punishment of dismissal from service was proposed. The plaintiff was given an opportunity to show cause against the action proposed to be taken against him and after consideration of his reply, his dismissal from service was ordered. He unsuccessfully challenged the same in appeal. The order of dismissal and the appellate order are speaking orders. The punishing authority and the appellate authority took into consideration the seriousness of the charge against the plaintiff and imposed the penalty of dismissal from service.
8. Rule 14.11-A of the Rules says that if a Police officer proceeds on leave and fails to join duty on the expiration of such leave without reasonable cause, he can be prosecuted under Section 29 of the Police Act, 1861 and can be dismissed from service after publication of a written proclamation under Section 87 of the Code of Criminal Procedure. Rule 14.11-A of the Rule reads thus : –
“If an enrolled police officer wihdraws from the duties of his office without permission or without having given two months’ previous notice as prescribed in rule 14.11 (2) or; being absent on leave, fails, without reasonable cause to report himself for duty on the expiration of such leave, he shall be prosecuted under Section 29 of the Police Act, 1861, and a warrant for his arrest shall be applied for. If the officer absconds or conceals himself so that the warrant cannot be executed, an application shall be made to the court for the publication of a written proclamation under section 87 of the Code of Criminal Procedure. If the proclamation is made and the police officer so proclaimed fails to appear within the statutory period of thirty days, he may be dismissed or otherwise dealt with at the discretion of the police officer empowered to appoint him, under rule 16.2 (2).”
The rule contains an enabling provision for taking action against an absconding police officer. The competent authority in a given case may, instead of proceeding against the absentee police officer through a regular departmental enquiry, initiate action under Rule 14 11-A of the Rules. The competent authority has to decide whether to initiate proceedings against the absconding police officer under Rule 14.11-A or to hold regular departmental enquiry. The two powers under the Police Rules are mutually exclusive. The power to proceed under Rule 14.11-A does not place any fetters on the powers of the competent authority to initiate departmental enquiry against the absconding police officer. The procedure laid down under Rule 14.11 A has to be followed when the competent authority decides to take action under this provision but not otherwise. In the instant case, the competent authority, for sound reasons, proceeded to take action against the plaintiff departmental for wilfully remaining absent from duty for thirty seven days. Moreover, Rule 14.11-A suggests that it will be invoked against an absconding police officer who does not resume duty voluntarily but, in the instant case, the plaintiff reported on duty and departmental action was initiated. The first appellate Court did not appreciate the scope and ambit of Rule 14 11-A of the Rules and on miscomprehension of this provision hastened to hold that the rule was mandatory and was not violated rendering the order of dismissal invalid. Dismissal from service is ordered under Rule 16.2 (1) of the Rules, which reads thus :-
“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.”
It is suggested that wilful absence from duty , does not amount to gravest act of misconduct and the order of dismissal from service is not in terms of this rule since punishment of dismissal can be inflicted only if it is proved that conduct of a delinquent official is incorigible. What is suggested does not flow from the rule. The rule envisages that dismissal from service can be ordered only for the gravest act of misconduct. The word ‘misconduct’ has sufficiently wide expression and covers a conduct which in any way lender a man unfit for his office or is likely to tamper or embarrass the administration. In this sense, grossly improper of unbecoming conduct in public life may also become misconduct and may render an officer liable to disciplinary action therefor. (See in this connection Golam Mohiuddin v. State of West Bengal, A.I.R 1964 Cal.503 at p.515.) An omission to do what is required of a person to do may, therefore, constitute misconduct, even though the person has not acted wilfully or malaciously. The plaintiff was a police constable posted on duty in the Police Lines. He wilfully remained absent from duty for thirty seven days. It will be misnomer to say that the con duct of the plaintiff will not constitute the gravest act of misconduct in terms of Rule 16.2 (1) of the Rules, Merely non-mentioning of the words ‘gravest acts of misconduct’ in the order of dismissal will not render the order bad if the diciplinary authority has otherwise taken into consideration the facts which in its opinion constitute the gravest acts of misconduct for which punishment of dismissal from service can be imposed This is precisely what has been done in the instant case and the order of dismissal from service is under the Rules and not dehors the Rules. No fault can be found with it. Character and service roll of the plaintiff is on record of the case. It is apparent therefrom that the plaintiff was dealt with departmentally for his absence from duty thirteen times prior to this incident and he was imposed punishment of censure, withholding of his pay and ferfeiture of qualifying service The judgment of the first appellate Court cannot be sustained.
9. For the reasons stated above, the appeal succeeds, the judgment and decree of the first appellate Court are set aside and those of the trial Court are restored and the, suit of the plaintiff is dismissed with costs. Counsel’s fee is assessed at Rs. 1,000/-.