Punjab-Haryana High Court
Ex.Head Constable Prem Singh vs State Of Haryana & Others on 18 November, 2013
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CWP No.4793 of 1997 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No.4793 of 1997
Date of decision:18.11.2013
Ex.Head Constable Prem Singh ....Petitioner
Versus
State of Haryana & others ......Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.R.K.Malik, Sr.Advocate
with Mr.Nikhil Sharma, Advocate, for the petitioner.
Mr.G.S.Chahal, Addl.A.G., Haryana.
*****
G.S.Sandhawalia J.(Oral)
1. Challenge in the present writ petition is to the order passed by the Superintendent of Police, Sonepat, dated 20.09.1994 (Annexure P3) whereby the petitioner, who was serving as a Head Constable, was dismissed from service. The said order was further upheld in appeal by respondent No.3 on 21.02.1995 (Annexure P5) and thereafter, in revision by respondent No.2 on 19.08.1996 (Annexure P7) which are also subject matter of challenge. The ground for dismissal was that the petitioner had been absent from duty for 3 months, 22 days, 13 hours and 30 minutes, without any intimation and sanction of leave from the competent authority and proof that he had fallen sick.
2. Counsel for the petitioner has restricted his argument to the relief that the order of dismissal is liable to be converted into an order of compulsory retirement since the departmental authorities have failed to take into consideration the length of service of the petitioner which was 22 years since he was enrolled on 17.01.1972 and the dismissal order was passed on 20.09.1994. It is further submitted that the petitioner has, now, attained the age of Sailesh Ranjan superannuation and therefore, cannot be reinstated. Accordingly, reliance has 2013.11.28 17:01 I attest to the accuracy and integrity of this document CWP No.4793 of 1997 -2- been placed upon Rule 16.2 of the Punjab Police Rules, 1934 (as applicable to the State of Haryana) (hereinafter to be referred to as the 'PPR').
3. Counsel for the State, on the other hand, has submitted that earlier also, the petitioner had been dismissed on 14.02.1991 and was reinstated in service on 16.02.1993 by the Deputy Inspector General of Police, Rohtak Range, Rohtak. It has been submitted that there were 3 periods of absence, totalling into 3 months, 22 days and therefore, there was wilful absence. The petitioner had produced medical certificates issued by private doctors from Rohtak which were not accepted since he was posed at Sonepat. Accordingly, the State has opposed the plea raised saying that it is not a case where the petitioner is entitled to the benefit of compulsory retirement.
4. After hearing counsel for the parties and perusing the record, it would be clear that the departmental authorities have followed the due procedure and an enquiry was also held regarding the charge of absence. A perusal of the enquiry report also shows that PW4, Dr.C.L.Nayer, Civil Road, Rohtak, had been examined who stated that the petitioner had remained under his treatment from 04.08.1990 to 24.09.1990 and he was suffering from chest pain and nervousness and again from 26.09.1990 to 09.10.1990, which are 2 periods of absence. Similarly, DW1, Sh.S.K.Goel, Doctor at Sangwan Hospital, Sonipat Road, Rohtak had also deposed that the petitioner was treated on 28.12.1990 for sadness and mental disorder and remained under his treatment. The said medical reports were not accepted by the authorities on the ground that the treatment should have been taken from General Hospital, through proper channel, under the permission of the senior officers, but it was not done and therefore, discarded by the authorities. This Court in CWP No.702 of 1994 titled Om Parkash Vs. State of Haryana & others, vide a detailed judgment dated 20.07.2012, Sailesh Ranjan discussed Rule 16.2 of the PPR regarding the issue that regard to the length of 2013.11.28 17:01 I attest to the accuracy and integrity of this document CWP No.4793 of 1997 -3- service is to be kept in mind and noticed several judgments on the said issue. After keeping in view the judgment of the Apex Court in Harjit Singh & another Vs. State of Punjab (2007) 9 SCC 582 and State of Punjab Vs. Ram Singh, Ex. Constable (1992) 4 SCC 5 wherein it was held that the length of service has to be taken into consideration when the gravest act of misconduct has been recorded, passed an order of compulsory retirement, to meet the ends of justice. Relevant portion of the judgment of Om Parkash (supra) reads as under:
"9. A Division Bench of this Court in S.I. Surinder Singh vs.State of Punjab, 2008 (6) SLR 556, also while noticing that the Courts are normally not to interfere in the quantum of punishment inflicted by the employer on its employees, allowed the writ petition after noticing that the petitioner had completed 20 years of service on the date of his dismissal after holding that there is violation of mandatory Rule 16.2 of PPR. Similar view was also taken by another Division Bench in Dhan Singh vs. State of Haryana, 2008 (3) SCT 816, wherein also service of the petitioner who had rendered 11 years and 9 months of service was taken into consideration and the dismissal order which had been upheld by the authorities was set aside and it was directed that the matter should be reconsidered. In Shiv Raj Sidhu vs. Union of India, 2011 (2) SCT 626, another Division Bench of this Court set aside the order of dismissal of the petitioner therein and held that punishment of forfeiture of two years of service would be sufficient punishment as the employee has joined as Assistant Sub Inspector on 21.05.1973 and was to retire on 30.11.2006, just six months prior to his dismissal on 18.05.2006.
10. Accordingly, keeping in view the settled proposition of law and in view of the fact that the petitioner's length of service has not been taken into consideration by the disciplinary authorities, it would be appropriate that the order of dismissal and the subsequent orders passed in appeal and revision are set aside and the same are converted into an order of compulsory retirement w.e.f. 25.02.1992 when the order of dismissal was passed, in view of the fact that the petitioner had completed almost 19 years of service on the date of his dismissal. The respondents are directed to compute the monetary benefits and release the same to the Sailesh Ranjan 2013.11.28 17:01 petitioner within a period of 3 months from the date of receipt of I attest to the accuracy and integrity of this document CWP No.4793 of 1997 -4- certified copy of the order."
5. In the present case also, there is no doubt regarding the length of service of the petitioner but the same was never taken into consideration by the authorities while passing the order of punishment, even though, under the rules, the authorities were under legal obligation to do so. Though, there is no gain saying the fact that the petitioner, being a member in the disciplined force, was not required to remain absent from duty for such a long time but from the record of the case, Learned Senior Counsel has been able to show and demonstrate that he was suffering from some mental ailment which kept him away from his normal course of duties. Accordingly, keeping in view the above facts and circumstances, this Court is of the opinion that the order of dismissal is liable to be converted into an order of compulsory retirement keeping in view the principles laid down which have been discussed above in Om Parkash case (supra).
6. Accordingly, the present writ petition is allowed and the orders of dismissal and the subsequent orders are hereby quashed and the same are converted into that of compulsory retirement w.e.f. 20.09.1994, i.e., the date when the order of dismissal was passed, in view of the fact that the petitioner had completed more than 22 years of service before the dismissal order was passed. The respondents are further directed to compute the monetary benefits and release the same to the petitioner within a period of 3 months from the date of receipt of certified copy of this order.
6. Writ petition is allowed in the abovestated terms.
18.11.2013 (G.S.SANDHAWALIA)
sailesh JUDGE
Sailesh Ranjan
2013.11.28 17:01
I attest to the accuracy and
integrity of this document