Punjab-Haryana High Court
Raj Kumar vs State Of Punjab And Others on 3 February, 2012
Author: Rajan Gupta
Bench: Rajan Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No.2381 of 1999
DATE OF DECISION: February 03, 2012
Raj Kumar
.....Petitioner
versus
State of Punjab and others
.....Respondents
CORAM:- HON'BLE MR. JUSTICE RAJAN GUPTA
Present: Mr.Rajesh Garg, Advocate for the petitioner
Ms.Monica Chhibbar Sharma, DAG, Punjab
..
RAJAN GUPTA, J.: (Oral)
Petitioner, who was serving as Constable in the Punjab Police has impugned order dated 29.11.1996 (Annexure P-4) whereby his services were terminated on the ground of misconduct he having remained absent from duty for 74 days from 22.6.1996 to 3.9.1996. Challenge has also been made to subsequent orders Annexures P-5, P-7 and P-8 passed in appeal, revision, etc. Learned counsel for the petitioner has assailed the order primarily on three grounds. According to him, in support of its case the department cited 3 witnesses. However, before the enquiry officer 5 witnesses were examined by them thereby taking the petitioner unawares. He has emphasised that department could not have examined even a single witness apart from those cited in its report. In support of his contention, he has placed reliance on a judgment reported as Hans Raj Gupta vs. State of Punjab, 1992(1) SLR 146. Another ground taken by him is that in the Civil Writ Petition No.2381 of 1999
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appeal which was preferred against the impugned order, no opportunity of personal hearing was granted to the petitioner, thus, resulting in grave injustice and violation of principles of natural justice. According to him, the appellate authority passed the order merely on scrutinizing the record and no opportunity of hearing was afforded. This would, according to him, vitiate the appellate order. He has placed reliance on judgment reported as Ram Chander vs. Union of India and others, AIR 1986 SC 1173. Besides, another ground of challenge is that alleged absence period of petitioner was from 22.6.1996 to 3.9.1996 but according to impugned order, even period subsequent to the date the petitioner was placed under suspension has been taken into account which is impermissible. In support of his contention he has placed reliance on a judgment of this court reported Bhim Singh, Constable vs. State of Haryana and others, 1996(1) Service Law Reporter (Pb.& Hry.) 179. He has thus prayed that impugned orders be set aside and petitioner be reinstated in service.
The prayer has, however, been vehemently opposed by Ms.Chhibber, learned State counsel. She submits that rules do not contain any provision for personal hearing at the appellate stage. In the absence of any such provision, no question of granting personal hearing to the petitioner arose. While referring to reply filed on behalf of the State, she submits that the petitioner was granted full opportunity of hearing by the enquiry officer as well as 2 Civil Writ Petition No.2381 of 1999
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the disciplinary authority. The appellate authority applied its mind to the facts of the case and grounds of appeal taken by the petitioner and thereafter passed the order- Annexure P/5. In support of her contention, she has placed reliance on judgment reported as Ganesh Santa Ram Sirur vs. State Bank of India and another, 2005(1) RSJ 43.
As regards the witnesses examined by the department, she submits that in the list of witnesses submitted before the enquiry officer it was clearly mentioned that number of witnesses could increase or decrease. She has emphasised that all the witnesses were cross-examined by the petitioner. Thus, no prejudice was caused to him. She has also urged that petitioner is a habitual absentee. His five years service had already been forfeited as he had absented himself for 270 days. Four censures were awarded to him. She relies upon a judgment of the apex court reported as Om Prakash vs. State of Punjab and Ors., 2011(4) Service Cases Today 341 to contend that a habitual absentee does not deserve the sympathy of the court. According to her, keeping in view the period of absence and misconduct of the petitioner which is writ large in the facts and circumstances of the case, the petition deserves to be dismissed.
I have heard learned counsel for the parties and given a careful thought to the facts of the case.
It appears that petitioner joined service as a Constable in Commando Battalion of Punjab Police in the year 1986. On 19.6.1996, he proceeded on leave for two days. He was supposed to report for duty on 22.6.1996, 3 Civil Writ Petition No.2381 of 1999
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however, he did not do so. He was placed under suspension on 2.7.1996 and charge-sheet was issued for the period of absence. A departmental enquiry was initiated under rule 16.24 of the Punjab Police Rules for imposition of major penalty. Before the enquiry officer, the department examined five witnesses. All of them were cross-examined by the petitioner. The enquiry officer found the petitioner guilty. Thereafter the matter came up before the disciplinary authority i.e. Commandant of 2nd Commando Battalion. Admittedly, the petitioner fully participated in the departmental proceedings. The said officer came to the conclusion that petitioner had remained absent from 22.6.1996 to 3.9.1996. Treating the same as misconduct, he was dismissed from service. Aggrieved, the petitioner preferred an appeal before the appellate authority i.e. Deputy Inspector General of Police. The said officer came to the conclusion that no material to show that petitioner had fallen ill was brought on record nor any information was sent to department. Finding no substance in the appeal, he dismissed the same. A revision was thereafter filed before the Inspector General of Police. However, same was also rejected. Another representation was thereafter made to the Inspector General of Police. However, same was also rejected. A representation was thereafter made to the Director General of Police, Punjab which met the same fate. Aggrieved, the petitioner has approached this court by way of instant writ petition challenging the impugned orders passed by the respondent authorities.
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It is evident that 5 years service of the petitioner had already been forfeited due to absence for 270 days and four censures were awarded to him during his service career. On account of remaining absent from 22.6.1996 to 3.9.1996, the instant proceedings were initiated against him. Learned counsel for the petitioner has taken the plea that only three witnesses were cited by the department, but five were examined. According to him, this is not permissible. He has relied on judgment of this court in Hans Raj Gupta's case (supra). There can be no doubt about the fact that in the charge-sheet submitted by the department it was mentioned that number of witnesses could increase or decrease. This apart, all the witnesses were cross-examined by the petitioner. Thus, no prejudice can be said to have been caused to him. This plea is thus, without any merit and deserves to be rejected.
Another ground for assailing the impugned order raised by the counsel is that period subsequent to the date petitioner was placed under suspension had been taken into account by the disciplinary authority. A perusal of the impugned order, however, shows that penalty has been awarded to the petitioner for remaining absent for the period 22.6.1996 to 3.9.1996. Thus, there is no merit in this argument. The judgment in Ram Chander's case (supra) cannot help the petitioner.
As regards the plea of opportunity of hearing before the appellate authority, a perusal of the order passed by the said authority shows that same is a detailed 5 Civil Writ Petition No.2381 of 1999
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order passed by the authority. The operative part thereof reads thus:-
"3. I have carefully considered the pleas taken by the appellant. There is nothing to show that the appellant had informed the Department about his illness. The Enquiry Officer conducted the departmental enquiry as per PPR 16.24. It is no where mentioned in the rules that an Officer of the rank of Inspector cannot conduct departmental enquiry against ORs. The plea of the appellant that documents pertaining to the departmental enquiry were not given to him is also unfounded. No reliance can be placed upon the medical certificate produced by the appellant. The appellant is a resident of Rahon and claims to have received the medical treatment from Banga which implies that he was not confined to bed and could easily sent his request for leave to the competent authority.
4. I have also examined record of departmental proceedings, Show Cause Notice and dismissal order passed by the Commandant. I do not find any substance in his appeal. Wilful absence for 74 days is the gravest act of misconduct by a member of disciplined force. The punishing authority has rightly awarded him the punishment of dismissal. I find no reason to dis-agree with the punishing authority. His appeal is rejected." 6
Civil Writ Petition No.2381 of 1999
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It is thus, evident that all the pleas raised by the petitioner were taken into consideration by the appellate authority. Thus, no prejudice could be said to have been caused to the petitioner. The apex court in Ganesh Santa Ram Sirur's case (supra), after considering the order passed by appellate authority, observed that principles of natural justice cannot be reduced to any hard and fast formulae and cannot be put in a straitjacket. Their applicability depends upon the context and the facts & circumstances of each case. The objective is to ensure a fair hearing and a fair deal to a person whose rights are going to be affected.
I am of the considered view that in the instant case it cannot be said that proper opportunity of hearing has not been granted to the petitioner or his pleas have not been taken into consideration by the appellate authority. The argument regarding lack of opportunity of hearing by the appellate authority thus, fails and is rejected. This apart, the apex court in Om Prakash's case (supra) observed that a habitual absentee without leave would not deserve any sympathy from the court. In the instant case, it appears that earlier also five years service of the petitioner was forfeited for having remained absent for 270 days. Observations of the apex court in Om Prakash's case (supra) are thus, relevant.
In the facts and circumstances of the case, I am of the considered view that this petition is without any merit and deserves to be dismissed.
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Dismissed.
February 03, 2012 ( RAJAN GUPTA )
pc JUDGE
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