Partap Singh vs State Of Haryana And Others on 5 October, 2013

[Cites 6, Cited by 35]

Punjab-Haryana High Court

Partap Singh vs State Of Haryana And Others on 5 October, 2013

Bench: Rajiv Narain Raina

IN THE PUNJAB & HARYANA HIGH COURT, CHANDIGARH

Civil Writ Petition No.15492 of 2006
Date of decision: 05.10.2013

Partap Singh
..... Petitioner

Versus

State of Haryana and others

..... Respondents

II.
Civil Writ Petition No.17624 of 2006 (O&M)
Date of decision: 05.10.2013

EHC Constable Subhash Chander
..... Petitioner

Versus

State of Haryana and others

..... Respondents

III.
Civil Writ Petition No.18607 of 2006 (O&M)
Date of decision: 05.10.2013

Ex. Constable Rajbir Singh
..... Petitioner

Versus

State of Haryana and others

..... Respondents

CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA

Present: Mr.N.S.Shekhawat, Advocate,
for the petitioner (CWP No.15492 of 2006).

Kumar Paritosh
2013.10.21 14:32
I attest to the accuracy and
integrity of this document
CWP No.15492 of 2006 and two connected CWPs 2

Mr.S.N.Yadav, Advocate,
for the petitioner (CWP No.17624 of 2006).

Mr.R.S.Dhull, Advocate,
for the petitioner (CWP No.18607 of 2006).

Mr. Sunil Nehra, Sr. DAG, Haryana

*****

1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes

RAJIV NARAIN RAINA, J.

This order will dispose of three connected petitions, i.e., CWP No.15492 of 2006, CWP No.17624 of 2006 and CWP No.18607 of 2006 as common questions of law and facts are involved therein. For the sake of convenience, the facts are culled out from CWP No.15492 of 2006.

2. The facts briefly stated are as follows: The petitioner was recruited as Constable in District Police, Mahendergarh on 5.3.1984. In the year, 1998, he was absorbed in Telecommunication Wing of the Haryana Police. He was awarded 22 commendation certificates in 11 years of service with no adverse entry in the confidential rolls. The petitioner absconded from duty from 5.10.1994 to 29.5.1995 while he was posted in R.T. Police Station City, Dabwali, Sirsa. The petitioner was served a charge sheet on 21.12.1995 for absence from duty without leave. A regular enquiry was conducted, in which, the charge stood established. On 5.2.1996, he was served with a show cause notice as to why he should not be awarded punishment of dismissal from service for the lapse. The petitioner explained that he was mentally disturbed and fell ill following the death of his father and his family problems kept him away from work. He sought ex-post facto sanction of leave. The request was not acceded to. An order of dismissal Kumar Paritosh 2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 3 from service was passed on 22.3.1996. His appeal to DIG (Telecommunication) failed on 5.12.1996. The revision petition filed against the appellate order before the Director General of Police, Haryana was rejected on 1.9.1997. The dismissal order was upheld. The mercy petition before the State Government was turned down on 11.8.1999. It was his case that absence from duty did not amount to the gravest act of misconduct. It was neither deliberate nor intentional. The matter attained finality and remained so for long thereafter. The Court was not approached against the dismissal from service. The history of willful absence from duty which pointed to the petitioner being habitual absentee has been narrated in the written statement filed by the State and are tabulated as under : -

                               S.No. Period of absence            Actual days of absence

                                1.     2.7.1993 to 23.9.1993      84 days EL/FP

                                2.     24.9.1993 to 15.11.1993 53 days EL/HP

                                3.     17.11.1993 to 23.3.1994 127 days EL/HP

                                4.     24.3.1994 to 4.7.1994      103 days leave without pay

                                5.     13.7.1994 to 28.8.1994     47 days LWP

                                6.     5.10.1994 to 29.5.1995     237 days LWP

                                     He was awarded the punishment of stoppage of

three future increments with permanent effect for willful absent from duty w.e.f. 2.7.93 to 15.11.1993 and 17.11.1993 to 4.7.1994 vide this office order No.23817-22 dated 17.10.1995"

3. It is explained that as a result of cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service, the petitioner was dismissed from service vide order dated 22.3.1996 passed Kumar Paritosh 2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 4 under rule 16.2 of Punjab Police Rules, 1934 as applicable to the State of Haryana for remaining willfully absent from duty with effect from 5.10.1994 to 29.5.1995

4. The petitioner suddenly woke up and by overeaching the rules and norms, and filed a memorial/mercy petition to the DGP, Haryana. It is candidly explained in the written statement that the then DGP, Haryana unauthorizedly and illegally accepted the memorial/mercy petition of the petitioner by ignoring all rules and converted the punishment of dismissal and reduced it to one of stoppage of 5 increments with permanent effect.

This alleged illegal order was passed on 16.6.2004. Thereafter, the State Government vide memo dated 25.4.2006 accorded approval for withdrawing the undue benefits given to the petitioner by the then DGP, Haryana. The incumbent Director General of Police, Haryana then issued a show cause notice dated 7.7.2006 to the petitioner. A reply was submitted to the show cause notice on 8.8.2006. The DGP heard the petitioner in person and found that his pleas in explanation of absence are not tenable. The punishment of dismissal from service awarded by the punishing authority vide order dated

22.3.1996 was restored vide order dated 8.9.2006.

5. The present petition is directed against the order dated 8.9.2006 passed by the Director General of Police, Haryana reviewing the order passed by Shri M.S.Malik, IPS, the then Director General of Police, Haryana, who had accepted the mercy petition after eight years of dismissal and had converted the same to one of reduced major punishment as stated above. The Director General of Police, Haryana in the impugned order has reviewed the order of his predecessor-in-office principally on the ground that there are no statutory provisions under the PPR, 1934 as applicable to Kumar Paritosh 2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 5 Haryana to entertain a mercy petition after the decision of the disciplinary authority as confirmed by the State Government. In such circumstances, the State Government was apprised of the facts and on consideration of the matter had accorded approval vide memo dated 25.4.2006 to withdraw the undue benefits given to the petitioner by Shri M.S.Malik, IPS, the then Director General of Police, Haryana. The benefits were withdrawn after issuing show cause notice and affording an opportunity of personal hearing to the petitioner before restoring the dismissal order dated 22.3.1996.

6. Aggrieved by the order dated 8.9.2006, the petitioner approached this Court challenging the order of restoration of dismissal order. This Court passed the following order on 26.9.2006 as under : -

" Learned counsel for the petitioner has argued that the impugned order dated 8.9.2006 (P-10) lacks authority of law as the Director General of Police has no power to review the order of its predecessor passed on 16.6.2004 converting the punishment of stoppage of five increments to that of dismissal.

Notice of motion for 27.11.2006.

In the meanwhile, operation of the order dated 8.9.2006 (P-10) shall remain stayed."

7. The case was admitted for regular hearing on 30.10.2007. Rule 16.2 of the PPR, 1934 as applicable to Haryana deals with dismissal and reads as follows : -

"16.2 Dismissal--

(1) Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect or Kumar Paritosh 2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 6 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 act 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 haltered

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.

(2) An enrolled police officer sentenced judicially to rigorous imprisonment exceeding one month or to any other punishment not less severe, shall, if such sentence is not quashed on appeal or revision, be dismissed. An enrolled police officer sentenced by a criminal court to a punishment of fine or simple imprisonment, or both, or to rigorous imprisonment not exceeding one month, or who, having been proclaimed under Section 87 of the Code of Criminal Procedure fails to appear within Kumar Paritosh 2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 7 the statutory period of thirty days may be dismissed or otherwise dealt with at the discretion of the officer empowered to appoint him. Final departmental orders in such cases shall be postponed until the appeal or revision proceedings have been decided, or until the period allowed for filing an appeal has lapsed without appellate or revisionary proceedings having been instituted.

Departmental punishments under this rule shall be awarded in accordance with the powers conferred by rule 16.1.

(3) When a police officer is convicted judicially and dismissed, or dismissed as a result of a departmental enquiry, in consequence of corrupt practices, the conviction and dismissal and its cause shall be published in the Police Gazette. In other cases of dismissal when it is desired to ensure that the officer dismissed shall not be re-

employed elsewhere, a full descriptive roll, with particulars of the punishments, shall be sent for publication in the Police Gazette"

8. The powers of review are prescribed in rule 16.28 and the same is reproduced for ready reference : -

"16.28. Powers to review proceedings (1) The Inspector-General, a Deputy Inspector-

General, and a Superintendent of Police may call for the records of awards made by their subordinates and confirm, enhance, modify or annul the same, or make further investigation or direct such to be made before passing orders.

(2) If an award of dismissal is annulled, the officer Kumar Paritosh annulling it shall state whether it is to be regarded 2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 8 as suspension followed by reinstatement, or not.

The order should also state whether service previous to dismissal should count for pension or not.

(3) In all cases in which officers propose to enhance an award they shall, before passing final orders, give the defaulter concerned an opportunity of showing cause, either personally or in writing, why his punishment should not be enhanced."

9. Rule 16.32 deals with the revision and is reproduced below : -

"16.32. Revision.

An officer whose appeal has been rejected is prohibited from applying for a fresh scrutiny of the evidence. Such officer may, however, apply, within a month of the date of dispatch of appellate orders to him, to the authority next above the prescribed appellate authority for revision on grounds of material irregularity in the proceedings or on production of fresh evidence, and may submit to the same authority a plea for mercy: provided that no application for the revision of an order by the Inspector-General will be entertained. An officer whose appeal has been heard by the Inspector General may however, submit to the Inspector- General a plea mercy or may apply to the Inspector-General for a review of his appellate order only on the ground that fresh evidence has become available since the appellate order has been pronounced. This rule does not affect the provisions of rule 16.28. Such application or plea must be in English."

Kumar Paritosh 2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 9

10. Rule 16.32 lays down that an officer whose appeal has been rejected is prohibited from applying for fresh scrutiny of the evidence. His further remedy lies in revision to the authority next above the prescribed appellate authority on grounds of material irregularity in the proceedings or on production of fresh evidence and may submit to the same authority, a plea of mercy. In case, the orders passed by the Inspector General of Police, no revision would lie. However, an officer whose appeal has been heard by the Inspector General, may submit to him a plea of mercy or request review of the appellate authority only on the ground of fresh evidence which may have become available since the appellate order has been pronounced.

11. Heard the learned counsel for the parties at length.

12. The learned counsel for the petitioner submits that when the order of dismissal was converted to one of stoppage of 5 increments with permanent effect by order passed on 16.6.2004, the petitioner was reinstated and had served for about 2 years before adverse action was taken by the successor in office and the dismissal order earlier passed was restored. He submits that the penalty of dismissal can be awarded only for the gravest act of misconduct or as the result of cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. Rule 16.2 enumerates the gravest acts of misconduct, for which, dismissal is justified. Absence from duty does not amount to gravest act of misconduct. The petitioner questions the validity of the initial dismissal order and that it was imposed for wrong reasons. The petitioner had a right even after eight years of slumber to present a mercy petition to the Director General of Police, Haryana for favourable orders since limitation does not stand in the way of justice. Once the predecessor in office has passed an order after conscious Kumar Paritosh 2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 10 and due application of mind, the successor in office is precluded from revisiting the order. Rule 16.27 is cited in support which confers power on the Director General of Police, Haryana to review the proceedings and he may call for the records of the awards and may confirm, enhance, modify or annul the same. Even rule 16.32 of the PPR, 1934 does not affect the mandate of rule 16.28. Therefore, the order dated 16.6.2004 (P-6) was legal and valid and the Director General of Police, Haryana had the absolute powers to review the order.

13. Mr. N.S.Shekhawat, learned counsel appearing for the petitioner accompanied by Mr. S.N.Yadav and Mr.R.S.Dhull, learned counsel for the petitioners in the connected petitions rely on the aforesaid provisions of the rules. In the case of the present petitioner, it is stated that he had put in 11 years of service on the date of dismissal and was awarded 22 commendation certificates in view of his meritorious services rendered. Therefore, the dismissal from service on account of absence from duty was highly unjustified and unwarranted. The DGP, Haryana had only corrected a bad order and was perfectly justified in doing so. Keeping in view the peculiar facts and circumstances of the instant case, it is complained that the impugned order dated 8.9.2006 (P-10) has been passed mechanically without looking to the previous record of the petitioner. The absence was during the year 1994-95 and dismissal after 11 years by re-opening the case is neither justified nor warranted in the facts. The petitioner has also questioned the fairness of the enquiry which led to the dismissal. It is submitted that the principles of natural justice were breached and full opportunity to defend himself was not granted. On these premises, the present petition rests. Mr. Shekhawat submits that the power of an administrative authority to review Kumar Paritosh 2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 11 its own order can be derived only from a Statute. The power of review cannot be presumed and exercise as a discretion vesting in a State functionary charged with duty of decision making.

14. It follows that if statute permits, such power of review can be exercised to review an order passed by an officer holding the same rank and post. For this purpose, he relies on Narinder Kaur v. The Commissioner, Ferozepur Division and others, 2003 (4) SLR 113: 2003 (3) SCT 56 delivered by the learned Single Judge of this Court. This was a case arising out of a seniority based issue. The question was not one of consideration of the case its merits but an issue of jurisdiction i.e. the authority to decide. In this case, it was found that the power of review was not specifically conferred by the rules.

15. Before proceeding further, it would be profitable to examine the reason assigned by the then Director General of Police, Haryana in his order dated 16.6.2004 (P-6) which led him to take a lenient view on the mercy petition and to convert the punishment of dismissal from service to one of stoppage of 5 increments with permanent effect even after the appeal etc stood rejected. The reason ascribed is thus : -

"Keeping in view the family circumstances and mercy pleas taken by the revisionists through his mercy petition especially in view of the hardship being faced by the revisionist and his family members, the punishment of dismissal from service seems to be excessive and too harsh."

16. The question really is whether these reasons are sufficient to invoke sympathy and compassion. The then Director General of Police, Kumar Paritosh 2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 12 Haryana has not faulted the departmental enquiry since he has held that those proceedings were conducted as per rules and prescribed procedure and the same does not suffer from any legal infirmity.

17. Sympathy and compassion was invoked on a mercy petition filed eight years after the dismissal order had been passed and in effective operation, severing the relationship of master and servant. The petitioner did not agitate the matter for an extraordinary period of eight years and appears to have taken favour on account of positional advantage of conducive climate change. In making the order, the Director General of Police, Haryana did not consider the element of public interest involved in reinstating a policeman after eight years of dismissal. This appears to me to be a rather serious matter in exercise of discretion by holder of high office. A distinction would have to be drawn between the power of the authority by virtue of holding office governed by the rule of law and the discretion to do so merely by virtue of holding office de hors the jurisdiction conferred by statute or whether rules prohibit or permit such course to be adopted. For eight years, the petitioner remained satisfied with the dispensation handed down through due process and he waited for fair weather and bright sun to stir out of the darkness. If the petitioner had taken recourse to a legal remedy against the dismissal order passed in 1996 either by bringing a suit in the civil court or by invoking the writ jurisdiction at the time pegged to submission of the mercy petition, such action would have been barred by limitation. The Court could not have granted relief to the petitioner.

18. The question which emerges for decision is whether a successor in office can review and revoke the order passed by a predecessor in office. This issue requires to be determined on the usually accepted principles that a Kumar Paritosh 2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 13 successor in office cannot normally review the order of a predecessor in office which has been passed after full application of mind through a conscious decision. A conscious decision has to be tested on recognized principles of law and unless there are compelling circumstances or new evidence, earlier decision ought not to be departed from except for special reasons. In the appeal, the petitioner had pleaded family circumstances as a mitigating factor in his favour but the same were not accepted in passing the original order of dismissal from service. If family circumstances could alone justify reinstatement to service, then, I am afraid, misplaced sympathies would be unacceptable reason for review. If this plea is accepted, then it will open up a Pandora's box which would be difficult to control by judicially manageable standards since the level of sympathy may vary from officer to officer. It may mean anything to anyone. Rules make no allowance for exercise of such misplaced sympathy or mere diktat of a King.

19. In R.T. Rangachari v. Secretary of State, AIR 1937 PC 27, the Privy Council with Lord Roche, J speaking for the bench of which Sir Shadi Lal, J. was a member dwelt on this issue in a case where an officer after giving the matter careful consideration and after full discussion in the decision making process arrived in all good faith to a decision of a predecessor in office, even though unrecorded, but acted upon by release of pension by the Accountant General to a plaintiff Sub Inspector of Police who was permitted by the Deputy Inspector General of Police retirement for health reasons in lieu of dismissal from service cannot be re-opened and can give a right of action if retracted held: -

"The first question is, has the appellant suffered a wrong, that is to say is his complaint well founded Kumar Paritosh 2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 14 in fact? If it is, then a second question arises, namely, is the wrong actionable and ought the appellant to have succeeded in this action? The answer to the first question seems to their Lordships plainly to be in the affirmative. It is not contended that Rule 351 of the Pensions Rules relating to conduct had any bearing on the matter or justified withdrawal of the pension. But their Lordships appreciate that for reasons which have already been indicated, irregularity or slackness of procedure may have given rise to suspicions of good faith which the investigation of the subject in this action has, or ought to have, entirely removed. In these circumstances the case becomes a case in which after Government officials duly competent and duly authorised in that behalf have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in effective operation, purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision. It seems to require no demonstration that an order purporting to remove the appellant from the service at a time when, as their Lordships hold, he had for some months duly and properly ceased to be in the service, was a mere nullity and cannot be sustained. It follows that in their Lordships' view the appellant had, and has, every right to complain of the stoppage of the pension as a breach of the rules relating to pensions. Both Courts below so held and their Lordships are in entire agreement with their decision on this point."

Therefore, the ingredients are as follows : -

Kumar Paritosh

2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 15

i. Predecessor in interest should be duly competent to take the decision.

ii. He should be duly authorised in that behalf.

iii. Should have arrived honestly at one decision.

iv. Decision should have been acted upon and is in effective operation.

v. In re-consideration, the successor in office should arrive at another and totally different decision.

20. In the present case, the predecessor in office was neither duly competent nor duly authorised to reverse a decision of his predecessor in office after 6 or 7 years. Rules did not permit review of the previous order passed by the disciplinary authority and confirmed by the then DGP, Haryana to dilute the penalty. It cannot be said that the decision was honestly arrived at. Merely because it was acted upon during the tenure of the predecessor in office would not give official colour or right of reinstatement in service

21. This takes us to the argument of gravest act of misconduct on the touch stone of which the dismissal orders can be sustained or of cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. Rule 16.2 requires that in making such an award, regard shall be had to the length of service of the offender and his claim to pension. Exception to rule 16.2 lists certain misconducts as the gravest but they are not exhaustive of the gravest acts of misconduct. They are only enumerative but not exhaustive since the words 'inter alia' have been used in the Explanation. Rule 16.32 shuns fresh scrutiny of evidence in Kumar Paritosh the revisional jurisdiction but a plea for mercy is embedded in the rule open 2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 16 to the same authority but a plea of mercy is also circumscribed by period of limitation of one month of the date of dispatch of an appellate orders. The limitation prescribed for entertaining mercy petition was long over and could not have been exercised after eight years. Prudence demanded non-exercise of power lest charge of extraneous considerations is raised or proved. There may have been many other in the same predicament but were not rescued out of the morass of delay. The impugned order dated 8.9.2006 proceeds on the basis that the predecessor in office had no power or authority in entertaining the mercy petition itself and, therefore, that order was passed without jurisdiction. The argument can be split into two parts ; firstly, on lack of jurisdiction and secondly, if there was lack of jurisdiction, then it matters little whether the order of the predecessor-in-office was passed after conscious application of mind. If resort to the first is not possible, then the question of taking a conscious decision to revoke an order of dismissal would not lie on first principles of law. An administrative order passed without jurisdiction is nonest in the eyes of law and nothing can breathe life into it not even the factum of reinstatement of the petitioner to service or that he had served for two years under the the colour of an illegal order. The petitioner may have been paid salary for that period but it does not confer by itself a vested and accrued right based on sound principles of law.

22. The first order must be legally valid before an argument can be accepted that a successor-in-office would remain bound by an order passed by his predecessor-in-office. The shield of the words 'conscious order' is not impenitrable to its kernel. The viel can be lifted by a successor-in-office to know its true nature and whether it was passed within the four corners of the law.

Kumar Paritosh

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23. Mr. Nehra has placed reliance on the decision of the Supreme Court in Om Parkash v. State of Punjab & Ors. 2011 (4) RSJ 542 to contend that a habitual absentee without leave does not deserve any sympathy from the Court. This was a case decided under Punjab Police Rules, 1934 and the period of absence from duty by the Head Constable in Punjab Police for 39 days which was found sufficient to justify the award of punishment of dismissal from service.

24. Mr. Shekhawat relies on Dhan Singh v. State of Haryana and others; 2009 (1) RSJ 62 to urge that only the acts complained of in rule 16.2 would alone constitute gravest acts of misconduct. Rule 16.2 came up for consideration before the Supreme Court in State of Punjab v. Ram Singh, Ex-Constable, 1992 (4) SCC 54, in which, it is held 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 Clauses 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 repletion of the acts complained of but its quality, insidious effect and gravity of situation Kumar Paritosh 2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 18 that ensures from the offending "act'. The colour of the gravest act must be gathered from the 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, single act of corruption is sufficient to award an order of dismissal under the rule as gravest act of misconduct."

25. In none of these cases, the aggrieved person sat back for eight years after dismissal from service only to approach the Director General of Police, Haryana through a mercy petition to procure an order of reinstatement or of reduced or watered down penalty. The petitioner was dismissed after 11 years of service and, therefore, the question of pension did not arise. Notwithstanding that the question of right to pension and its non-consideration has as not even been raised in the petition and, therefore, calls for no opinion.

26. The question of gravest act of misconduct does not, to my mind, lie in this case for two reasons; one that the dismissal order was not questioned by the petitioner for eight years and secondly, the then Director General of Police, Haryana did not deal with this issue and only said that the dismissal seems to be excessive and too harsh and that too on the ground of mercy shown to family circumstances. The period of un-explained absence Kumar Paritosh from duty in this case is so substantially interlinked with past absences for 2013.10.21 14:32 I attest to the accuracy and integrity of this document CWP No.15492 of 2006 and two connected CWPs 19 substantial periods that incorrigibility and unfitness for service is inferential. I, therefore, do not think, that there is any legal infirmity in the impugned order dated 8.9.2006 (P-10) and would sustain it as legal and valid. The order passed by the predecessor-in-office was contrary to law and was based largely on humour, which is not a good sign of fair and transparent administration or principle of sound governance. Public interest did not justify it nor expediency would. It is open to the implementers of rule 16.2 to add through the open window of 'inter alia' other misconducts which are viewed as gravest in their eyes and by those who administer the law and the rules expanding with the changing times and emerging demands of efficiency in administration expected from the police personnel. The interpretation of the Explanation to rule 16.2 deserves to be purposive, broad and organic. 'Inter alia' means 'amongst other things' ; 'some examples from among many possibilities'. It cannot to my mind suffer restrictive interpretation as in nocitur a sociis or that the examples enumerated will admit only 'akin', 'the like' or 'birds of a feather flock together' rule of construction.

27. For the aforesaid reasons, I do not find any merit in this petition and in the connected writ petitions which are accordingly dismissed.





                                                                    (RAJIV NARAIN RAINA)
                  October 05, 2013                                          JUDGE
                  Paritosh Kumar




Kumar Paritosh
2013.10.21 14:32
I attest to the accuracy and
integrity of this document

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