Punjab-Haryana High Court
Sushil Kumar vs State Of Haryana & Others on 24 August, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No.19178 of 2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.19178 of 2011 (O&M)
Date of Decision : 24.08.2012
Sushil Kumar ... Petitioner
versus
State of Haryana & others ... Respondents
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present : Mr. Surya Parkash, Advocate
for the petitioner.
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AUGUSTINE GEORGE MASIH, J.
Through this petition challenge has been posed to the order dated 18.08.2008 (Annexure P-1) passed by respondent No.4 - Superintendent of Police, Commando (Naval) Karnal vide which petitioner has been dismissed from service.
Briefly the facts are that the petitioner had been working as Class IV employee (water career) for 16 years. When on 18.06.2007 after performing his duty, he returned home but could not join duty because of his illness. He reported back for duty on 06.11.2007. As the petitioner had remained absent from duty without any leave/ permission from 18.06.2007 to 06.11.2007 for a period of 140 days and 5 hours. Chargesheet dated 06.01.2008 was served upon him by respondent No.4 - Superintendent of Police, Commando (Naval). The petitioner chose not to file any reply to the chargesheet. Therefore, a departmental inquiry was initiated against him under Rule 7 of Punishment and Appeal Rules, 1987. Statements of the prosecution witnesses were recorded in the presence of the CWP No.19178 of 2011 (O&M) -2- petitioner and thereafter the petitioner was given an opportunity to defend himself. The petitioner chose not to produce any evidence in defence, however, submitted a written statement.
The inquiry officer considered the record and submitted his report on 08.07.2008 holding the petitioner guilty of the charge of absence from duty for 140 days and 5 hours. On considering the report of the inquiry officer and the records, a show cause notice dated 28.07.2008 was served on the petitioner as to why punishment of dismissal from service be not imposed upon him, which was received by him on 30.07.2008 along with the copy of the inquiry report. He was called upon to submit his reply within 15 days. The petitioner chose not to file any reply. Considering the inquiry report and perusing the service record of the petitioner, the punishment of dismissal from service was imposed upon him by the Superintendent of Police - respondent No.4 vide order dated 18.08.2008. While passing the said order apart from relying upon the inquiry report, the service record of the petitioner was also considered, where it was found that he absented himself from duty on 51 occasions and an opinion was formed that the petitioner was habitual of absenting from duty willfully and this action rendered him incorrigible for retention in service. While passing the said order, the punishing authority further observed that his absence period i.e.140 days and 5 hours total 141 days be treated as without wages on the basis of 'No work no pay formula'.
Against this order, petitioner preferred an appeal before the Inspector General of Police - respondent No.3, which was rejected being devoid of merit vide order dated 30.10.2008 (Annexure P-4). CWP No.19178 of 2011 (O&M) -3- Revision preferred by the petitioner stands dismissed by the Director General of Police, Haryana - respondent No.2 vide order dated 28.10.2009 (Annexure P-5). It is at this stage that the petitioner has now filed the writ petition.
Counsel for the petitioner submits that while passing the order of dismissal from service, length of service rendered by the petitioner has not been taken into consideration for determining the quantum of punishment. The petitioner has served with the respondents for more than 10 years and the punishment imposed upon the petitioner is too harsh. His further contention is that an employee cannot be punished for a charge which is not levelled against him. He submits that there was no charge that the petitioner had remained absent on 51 occasions and nothing has been brought on record during the inquiry proceedings to prove the said charge but the same has been taken into consideration by the punishing authority for imposing the punishment of dismissal from service. In support of this contention, reliance has been placed upon the judgment of this Court in Jagdish Kumar vs. State of Punjab and another, 1994(4) RSJ 151. He submits that the petitioner has not been granted an opportunity to cross-examine the witnesses during the inquiry proceedings, which is a valuable right which has been conferred on an employee and therefore, the departmental proceedings stands vitiated. In support of this contention, reliance has been placed upon the judgment of this Court in K.C.Arora vs. State of Haryana, 1997(2) SCT 324. Another ground which is pressed in the petition for assailing the dismissal is that the charge of absence from duty, which is proved against the petitioner stands CWP No.19178 of 2011 (O&M) -4- condoned when in the order of punishment dated 18.08.2008 the punishing authority has approved the absence period of 141 days as without wages on the principal of 'No work no pay formula'. Once the misconduct has been condoned the order of punishment cannot sustain. In support of this contention, reliance has been placed upon the judgment of Andhra Pradesh High Court in G.Papaiah vs. Assistant Director, Medical Services, Secunderabad, AIR 1976 Andhra Pradesh 75. Accordingly, it has been asserted by the counsel for the petitioner that the writ petition deserves to be allowed by quashing the impugned order of punishment.
I have considered the submissions made by counsel for the petitioner and with his assistance have gone through the record of the case.
The first contention, which needs to be dealt with is with regard to the charge-sheet served upon the petitioner where the allegations are that he has absented from duty without intimation or getting the prior permission/leave sanction and is a habitual absentee, which is vague, as asserted by the counsel for the petitioner. Perusal of the charge-sheet dated 06.01.2008 (Annexure P-2) does not support the assertion as has been put-forth by the counsel for the petitioner as it is clearly mentioned therein about the date of commencement of his absence and the date of reporting back on the duty along with the rapat number. Period has been mentioned as 140 days and 5 hours. The inquiry officer has proceeded to inquire into this aspect and on the basis of the evidence led by the prosecution and the reply filed by the petitioner had come to the conclusion that the charge of absence from duty for 140 days and 5 CWP No.19178 of 2011 (O&M) -5- hours stood proved against the petitioner and this is the finding, which has been recorded and returned. It cannot therefore, be said that the charge against the petitioner is either vague or ambiguous. Therefore, the assertion of the petitioner's counsel with regard to the vagueness of the chargesheet does not sustain.
As regards the contention of the counsel for the petitioner that the petitioner has not been given an opportunity to cross- examine the witnesses during the inquiry proceedings, the same also cannot be accepted in the light of the fact that the statements of the witnesses were duly recorded in the presence of the petitioner. At no stage, the petitioner stated that he wanted to cross-examine the witnesses or ask questions from them. Even in the reply which has been filed by him before the inquiry officer, this aspect has not been agitated by him. To the show cause notice, no reply has been preferred by the petitioner. Even in the reply, which has been preferred by him, there is no assertion that he has not been granted an opportunity to cross-examine the witnesses. Thus, the contention of the counsel for the petitioner cannot be accepted as it is an afterthought.
As regards taking into consideration the absence of the petitioner of 51 occasions prior to his absence for which he was charge-sheeted while passing the order of punishment, suffice it to say that under Rule 16.2 of the Punjab Police Rules, 1934, as applicable to the State of Haryana, the punishing authority can take into consideration the earlier service record of an employee to come to a conclusion the cumulative effect of conduct of an employee proving incorrigibility and complete unfitness for police service. The CWP No.19178 of 2011 (O&M) -6- punishing authority, therefore, while considering the service record of the petitioner has noticed that he had on 51 earlier occasions also absented himself from duty, which showed him to be a habitual absentee, thus, proving him incorrigible and completely unfit for police service. The factum of the petitioner having remained absent from service on 51 earlier occasions as per service record has not been denied by the petitioner either in his appeal, revision or in the writ petition preferred by him. There is no illegality committed by the punishing authority while taking into consideration the earlier service record of the petitioner.
The assertion of the counsel for the petitioner that the length of service rendered by the petitioner has not been taken into consideration for imposing the punishment of absence from duty again cannot be accepted as it is admitted by the counsel for the petitioner that the petitioner has not fulfilled the mandate of the statutory rules which would entitle him to the claim of pension as he has not rendered 20 years of service with the respondents, which is the minimum requirement. Rule 16.2 although does mention that length of service is a relevant fact of determining the punishment to be imposed upon a delinquent employee, however, the dismissal order can be awarded only for the gravest acts of misconduct or as the cumulative effect of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. Regard has to be given to the length of service but if the misconduct is of such a nature that it does not call for any other punishment, the order of dismissal is fully justified.
Hon'ble Supreme Court in various judgments have held CWP No.19178 of 2011 (O&M) -7- that absence from duty and that too for a disciplined force amounts to a gravest act of misconduct which itself would render the delinquent employee unfit to be retained in service and a single act of absence from duty would be enough for imposing the punishment of dismissal. Reference to the judgment of the Hon'ble Supreme Court in the case of State of UP vs. Ashok Kumar and another, AIR 1996 (SC) 736 can be made. The petitioner has not only absented for 140 days and 5 hours for which he was charge-sheeted, apart from that he absented for 51 earlier occasions, which leaves no manner of doubt that the petitioner is habitual absentee and therefore, the dismissal imposed by the Superintendent of Police - respondent No.4 is fully justified and does not call for any interference by this Court.
Counsel for the petitioner has asserted that the punishing authority has condoned the misconduct of the petitioner by treating the absence period of 141 days as without wages. This contention of the counsel for the petitioner cannot be accepted as the same was done only with an intention to put the record straight. Had the intention been of the punishing authority to condone the absence period, it would not have passed the order of dismissal. In Om Parkash vs. State of Punjab and others, 2011(4) RSJ 542 as also in the State of MP vs. Harihar Gopal, 1969 SLR (SC)274 and Mann Singh vs. Union of India and others, 2003(3) SCC 464 the Hon'ble Supreme Court in a similar situation has held that if the departmental authorities after passing of the order of punishment, passes an order to maintain the correct record of service of the delinquent officer, adjust the said period of duty leave due to the delinquent officer, the said action cannot be treated as an action CWP No.19178 of 2011 (O&M) -8- condoning the lapses and misconduct of the delinquent officer. Therefore, this argument raised by the counsel for the petitioner also deserves rejection.
In view of the above, finding no merit in the present writ petition the same stands dismissed.
24.08. 2012 (AUGUSTINE GEORGE MASIH) sonia JUDGE