Punjab-Haryana High Court
Bikram Singh vs State Of Punjab & Others on 25 September, 2013
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CWP No. 23398 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 23398 of 2011
Judgment Reserved on: 05.09.2013
Date of decision: 25.09.2013
Bikram Singh ...... Petitioner
Vs.
State of Punjab & others ..... Respondents
CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA.
Present: Mr. Sanjiv Sharma, Senior Advocate with
Mr. Vikram Vir Sharda, Advocate for the petitioner.
Ms. Sudeepti Sharma, Deputy Advocate General, Punjab.
....
TEJINDER SINGH DHINDSA.
The petitioner who was serving as a Constable has filed the instant writ petition questioning the validity of the order dated 25.08.2006 (Annexure P-4) passed by the Commandant, 82nd Battalion, PAP Chandigarh, whereby the extreme penalty of dismissal from service has been imposed upon him. Further challenge is to the orders dated 14.05.2007 (Annexure P-6) and 25.03.2008 (Annexure P-8), whereby the Appellate and Revisional Authorities have affirmed the orders of dismissal.
Petitioner joined service with the Police Department as Constable on 18.01.1994 in the Punjab Armed Police Wing. A departmental inquiry was initiated against him on the allegation that he had put his signatures on blank TA forms and supplied the same to HC Gurmej Singh, the then Accountant, 82nd Battalion, PAP and in pursuance thereto, TA amount of Rs. 21,730/- had been withdrawn. The duly appointed Inquiry Kaur Harjeet 2013.09.26 10:57 I attest to the accuracy and integrity of this document CWP No. 23398 of 2011 -2- Officer furnished an inquiry report and a show cause notice dated 15.06.2006 at Annexure P-2 was served upon the petitioner, wherein a penalty of dismissal was contemplated. The petitioner furnished his reply thereto, and after consideration of the same and having afforded an opportunity of personal hearing, the impugned order dated 25.08.2006 has been passed by the disciplinary authority at Annexure P-4 dismissing the petitioner from service. The statutory appeal preferred by the petitioner has been rejected vide order dated 14.05.2007 (Annexure P-6) passed by the Deputy Inspector General of Police, PAP-2 and Training Punjab and even the subsequent revision petition has met the same fate in terms of passing of order dated 25.03.2008 (Annexure P-8) passed by the Inspector General of Police, PAP Jalandhar Cant.
Apparently, the petitioner thereafter even filed a mercy cum revision petition before the Director General of Police and which also has not been entertained. It is against such factual backdrop that the present writ petition has been instituted.
Learned senior counsel appearing for the petitioner has strenuously argued that the punishment of dismissal imposed upon the petitioner in the facts and circumstances of the case cannot hold good as the only allegation against the petitioner which stood duly proved was having been negligent in filling up the TA/DA claim forms and the same cannot be construed to fall within the expression of "gravest act of misconduct". Heavy reliance has been placed upon the judgment of the Hon'ble Supreme Court in Inspector Prem Chand V. Government of NCT of Delhi & others 2007 (2) SCT 650 to contend that the act of negligence could not per se be taken as misconduct. Counsel has further argued that under Rule 16.2 of the Kaur Harjeet 2013.09.26 10:57 I attest to the accuracy and integrity of this document CWP No. 23398 of 2011 -3- Punjab Police Rules, 1934, it was incumbent upon the Punishing Authority to have taken into consideration petitioner's unblemished service record of 12 years as also his claim to pension.
Learned State counsel on the other hand would submit that the petitioner was involved in a TA scandal and embezzlement of government funds, wherein he had submitted blank TA forms duly signed to HC Gurmej Singh, the then Accountant, who has since been dismissed from service on the same allegations and the petitioner was in connivance with such Accountant and an amount of Rs. 21,730/- had been withdrawn in an dishonest manner. Reliance has also been placed upon Punjab Government Circular dated 22.08.1955 in terms of which the minimum punishment for claiming, preparing and drawing the false TA is dismissal from service. State counsel would contend that such an offence would amount to a gravest act of misconduct and there was no scope for any leniency to be shown.
It is the common case of the parties that the dismissal of the petitioner has been ordered in terms of Rule 16.2 of the Punjab Police Rules which reads in the following terms:
"16.2. Dismissal-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 be length of service of the offender and his claim to pension.
(2) xx xx xx xx
xx xx xx
(3) xx xx xx xx
xx xx xx
The aforementioned rules fell for the consideration of the Supreme Court in the case of State of Punjab V. Ram Singh Ex. Constable, 1992 (3) Kaur Harjeet 2013.09.26 10:57 I attest to the accuracy and integrity of this document CWP No. 23398 of 2011 -4- SCT 448: 1992 (4) SCC 54."
Rule 16.2 (1) provides for dismissal for "gravest acts of misconduct" or for the cumulative act of continuous misconduct, proving incorrigibility and complete unfitness for police service. Under the first part of the rule, gravest act of misconduct entails dismissal, whereas under the second part of the rule, cumulative effect of continued misconduct also invites the penalty of dismissal. However, in both the cases, incorrigibility of the delinquent official and complete unfitness for police service has to be established. There is another rider on the award of the punishment incorporated in the rule itself which inter alia requires the Punishing Authority to take into consideration the length of service of the delinquent and his claim to pension.
Rule 16.2 came up for consideration before the Hon'ble Supreme Court in the cases of State of Punjab Vs. Ram Singh Ex Constable, 1992 (3) SCT 448, Their Lordships have interpreted the rule in paras 7 and 8 of the judgment which read as under:
"7. Rule 16.2 (1) consists of two parts. The first part is referable to gravest acts of misconduct which entails awarding an order of dismissal. Undoubtedly there is distinction between gravest misconduct and grave misconduct. Before awarding an order of dismissal it shall be mandatory that dismissal order should be made only when there are gravest acts of misconduct, since it impinges upon the pensionary rights of the delinquent after putting long length of service. As stated the first part relates to gravest acts of misconduct. Under General Clause Act singular includes plural, "act" includes acts. The contention that there must be plurality of acts of misconduct to award dismissal is fastidious. The word "acts" would include singular "act" as well. It is not the repetition of the acts Kaur Harjeet complained of but its quality, insidious effect and gravity of 2013.09.26 10:57 I attest to the accuracy and integrity of this document CWP No. 23398 of 2011 -5- situation that ensues from the offending 'act'. The colour of the gravest act must be gathered from surrounding or attending circumstances. Take for instance the delinquent who put in 29 years of continuous length of service and had unblemished record; in thirtieth year he commits defalcation of public money or fabricates false records to conceal misappropriation. He only committed once. Does it mean that he should not be inflicted with the punishment of dismissal but be allowed to continue in service for that year to enable him to get his full pension. The answer is obviously no. Therefore, a single act of corruption is sufficient to award an order of dismissal under the rule as gravest act of misconduct.
8. The second part of the rule cannotes the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and that the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The contention that both parts must be read together appears to us to be illogical. Second part is referable to a misconduct minor in character which does not by itself warrant an order of dismissal but due to continued acts of misconduct would have insidious cumulative effect on service morale and may be ground to take lenient view of giving an opportunity to reform. Despite giving such opportunities if the delinquent officer proved to be incorrigible and found completely unfit to remain in service then to maintain disciplin in the service, instead of dismissing the delinquent officer, a lesser punishment of compulsory retirement or demotion to a lower grade or rank or removal from service without affecting his future chances of re- employment, if any, may meet the ends of justice. Take for instance the delinquent officer who is habitually absent from duty when required. Despite giving an opportunity to reform himself he continues to remain from duty off and on. He proved himself to be incorrigible and thereby unfit to continue in service. Therefore, taking into account his long length of Kaur Harjeet 2013.09.26 10:57 I attest to the accuracy and integrity of this document CWP No. 23398 of 2011 -6- service and his claim for pension he may be compulsorily retired from service so as to enable him to earn proportionate pension. The second part of the rule operates in that area. It may also be made clear that the very order of dismissal from service for gravest misconduct may entail forfeiture of all pensionary benefits. Therefore, the work 'or' cannot be read as "and". It must be disjunctive and independent. The common link that connects both clauses is "the gravest act/acts of misconduct."
Adverting back to the facts of the present case, the findings returned by the Inquiry Officer and against the petitioner were to the following effect"
" In the end, I reached the conclusion that Constable Bikram Singh No. 82/672 being a member of the disciplined force and being well conversant with the rules of the department, putting up his signatures on the blank TA Forms as the asking of HC Gurmej Singh 82/33, has given the solid proof of negligence. The amount of TA Rupees 21730/- which has been withdrawn has not been received by him. This amount has been received by HC Gurmej Singh no. 82/33 by putting up forged signatures and has got issued road certificate in his own name. Putting up signatures on the blank TA Forms by the Delinquent Employees, Delinquent Employee has proved the indiscipline and his negligence.
Sd/-
(Enquiry Officer) Assistant Commandant."
The operative part of the impugned order of dismissal passed by the Punishing Authority reads in the following terms:
"I perused and probed into the written reply sent by him very carefully and the undersigned has also called him in my office for hearing him personally. This constable had not Kaur Harjeet attended my office for producing his defence evidence, rather 2013.09.26 10:57 I attest to the accuracy and integrity of this document CWP No. 23398 of 2011 -7- he has absented himself continuously, but father of this constable appeared in my office, which has no concern with this departmental enquiry. This constable could not present any such solid proof in my office by which it may be reveal that this constable is innocent. That I do not agree with the written reply sent by him and in the end I have reached a conclusion that I must impose the same punishment against the defaulter which had been proposed in the show cause notice. Therefore I dismiss Constable Bikram Singh no. 82/672 from the service of the Police Department today on 25.08.2006 After Noon. He will receive only that which he had already received during the suspension period, in addition to this he will not receive any thing more. Order may be recorded in the order book. A copy of this order may be delivered to Constable Bikram Singh no. 82/672, free of cost.
Sd/- Amit Parshad Commandant, 82nd Battalion, P.A.P. Chandigarh."
A bare perusal of the dismissal order passed by the Commandant, 82nd Battalion, PAP Chandigarh would clearly reveal that no finding has been recorded that the petitioner is guilty of an act of "gravest misconduct". It has also not been held that the petitioner is guilty of a continued misconduct proving his incorrigibility and complete unfitness for police service. The extent and effect of findings of the Inquiry Officer holding the petitioner to be negligent and the amount of Rs. 21,730/- having not been received by him have not been gone into. There is no reference to the service record of the petitioner and the impugned order of dismissal does not even reveal application of mind at the hands of the Punishing Authority on the question as to whether any other penalty could have been imposed upon the petitioner keeping in view his past service record. That apart, the mandate of Rule 16.2 has also been given a go by inasmuch as, Kaur Harjeet 2013.09.26 10:57 I attest to the accuracy and integrity of this document CWP No. 23398 of 2011 -8- the length of service of the petitioner has not been taken into account while passing the impugned order. Suffice it to notice that even the Appellate Authority as also the Revisional Authority have not gone into the aspect of non consideration of the provisions of Rule 16.2.
In view of the reasons recorded above, the impugned orders dated 25.08.2006 (Annexure P-4), 14.05.2007 (Annexure P-6), 25.3.2008 (Annexure P-8) and 19.02.2009 (Annexure P-10) are set aside. The matter is remanded back to the Punishing Authority to pass a fresh order upon reconsideration strictly in the light of Rule 16.2 of the Punjab Police Rules. Such exercise be completed within a period of three months from the date of receipt of a certified copy of this order. It is, however, clarified that the order of reinstatement of the petitioner shall remain in abeyance till the fresh consideration is accorded and will depend upon the outcome of such fresh consideration.
Disposed of.
September 25, 2013 (TEJINDER SINGH DHINDSA)
harjeet JUDGE
Note: Whether to be referred to Reporter? (Yes)
Kaur Harjeet
2013.09.26 10:57
I attest to the accuracy and
integrity of this document