Punjab-Haryana High Court
Isham Singh vs State Of Haryana And Others on 2 March, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 4026 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 4026 of 2012
Date of Decision : March 02, 2012
Isham Singh
.... PETITIONER
Vs.
State of Haryana and others
..... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present : Mr. K.S.Banyana, Advocate,
for the petitioner.
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioner has approached this Court challenging the order of dismissal dated 31.08.2010 (Annexure P-3), Appellate Order dated 15.02.2011 (Annexure P-4), Revisional Order dated 25.08.2011 (Annexure P-5) on the ground that the order of dismissal could not be imposed upon the petitioner for absence from duty as the same does not form a part of Rule 16.2 (1) of the Punjab Police Rules, 1934, (hereinafter referred to as 'the 1934 Rules') as applicable to the State of Haryana.
CWP No. 4026 of 2012 2
Petitioner was enrolled as a Constable on 01.08.1985. After holding a departmental enquiry against him, he was dismissed from service on account of absence from duty for 72 days 12 hours and 40 minutes, vide order dated 09.06.2005 (Annexure P-1). Against this order, he filed an appeal, which was dismissed on 27.10.2005. Revision preferred by him was also dismissed on 16.03.2006 leading to the filing of CWP No. 11836 of 2007 by him. The writ petition filed by the petitioner was allowed by this Court, vide order dated 20.01.2010 (Annexure P-2), on the ground that his claim to pension has not been considered by the punishing authority while passing the order of dismissal, as mandated under Rule 16.2 (1) of the 1934 Rules. The matter was remitted back to the disciplinary authority to consider the question of punishment to be awarded to the petitioner afresh, keeping in view the service rendered by him and his claim to pension in accordance with Rule 16.2 of the 1934 Rules.
In pursuance to the order passed in CWP No. 11836 of 2007 by this Court dated 20.01.2010, disciplinary authority has proceeded to pass a fresh order dated 31.08.2010 (Annexure P-3) imposing a punishment of dismissal. The appeal and revision preferred by the petitioner stand rejected vide orders dated 15.02.2011 (Annexure P-4) and 25.08.2011 (Anneuxre P-5) respectively, leading to the filing of the present petition challenging these orders.
Counsel for the petitioner contends that as per Rule 16.2 (1) of the 1934 Rules with special reference to the explanation CWP No. 4026 of 2012 3 thereto, absence from duty cannot be treated as an act of grave misconduct which would entail punishment of dismissal, as has been imposed upon the petitioner vide the impugned order. His further contention is that the petitioner had served for about 20 years with the respondents and, therefore, his claim for pension has also not been considered by the punishing authority. The punishing authority should have, keeping in view the length of service of the petitioner, imposed a lesser punishment than the dismissal from service. Reliance has been placed by the counsel for the petitioner on a Division Bench judgment of this Court in Dhan Singh vs. State of Haryana and others, 2009 (1) RSJ 63. On this basis, he prays for quashing of the impugned orders.
I have considered the submissions made by the counsel for the petitioner.
Rule 16.2 of the 1934 Rules reads as follows:-
"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 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 acts of misconduct in respect of a police officer, facing disciplinary action.-CWP No. 4026 of 2012 4
(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 hatred 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 strife."
A perusal of the Rule would show that the explanation to the Rule contains word 'inter-alia', which is placed in such a manner that it shows that this explanation being explanatory and inclusive in nature is not restricted to the gravest act of misconduct declared therein. It is further extended to other acts also which may, in the given facts and circumstances, be termed as gravest act of misconduct. In any case, a cumulative effect of continued misconduct would also call for award of punishment of dismissal if such acts of misconduct leave the employee incorrigible and completely unfit for police service.
In the present case, petitioner was issued a charge-sheet for absence from duty for a period of 72 days 12 hours and 40 CWP No. 4026 of 2012 5 minutes. The Enquiry Officer contacted the place of posting of the delinquent where he was found absent from duty. Three notices were sent on his home address for joining the departmental enquiry. All three notices were served on him and in fact, first two notices were received by him personally. Despite this, he did not join the enquiry or sent any information nor did he join the duty and remained absent during the enquiry proceedings as well. The Enquiry Officer was left with no option but to proceed against him ex-parte. The findings were returned by the Enquiry Officer holding the petitioner guilty. Petitioner was served with a show cause notice and was also supplied the copy of the enquiry report. Reply to the show cause notice was submitted by the petitioner on 04.08.2010. He was personally heard by the Superintendent of Police, Ambala. The plea taken by the petitioner before the punishing authority was that he was unwell and, therefore, could not report for duty. He did not submit any medical certificate/document in support of his illness. Had he been actually ill he would have got himself hospitalized or would have taken some treatment but no proof in this regard was submitted by the petitioner. The findings thus, recorded by the Enquiry Officer were confirmed by the punishing authority holding the petitioner guilty of the charge of absence from duty, which was found to be gravest act of misconduct, carelessness and indiscipline on the part of the petitioner. Not only this, the punishing authority, on a perusal of the service record of the petitioner and on the basis of the CWP No. 4026 of 2012 6 evidence produced during the enquiry, found that the delinquent had remained absent earlier also on many occasions without leave and information, which details were mentioned in the show cause notice issued to the petitioner. The details of which have been mentioned in the impugned order and they read as follows:-
" (i) punishment of censure in the year 1993 for absence of 18 days from 24.7.92 to 10.8.92 (ii) Punishment of stoppage of annual increments with permanent effect in the year 1997 for absence of 44 days from 16.11.96 to 30.12.96 (iii) Dismissed from Govt. service on 22.5.2000 for absence of 230 days from 7.1.99 to 24.8.99 but in the appeal reinstated in service on 19.1.2001 and 4 annual increments were stopped with permanent effect (iv) 8 annual increments were stopped with permanent effect in the year 2001 due to the absence of 37 days from 23.4.98 to 5.5.98 and 21.10.98 to 15.11.98 (v) Punishment of Drill for 15 days in the year 2001 due to the absence of 21 days from 7.9.01 to 28.9.01. (vi) Punishment of Drill for 15 days due to the absence of 3 days from 27.01.02 to 29.01.02 in the year 2002 (vii) 5 annual increments were stopped with permanent effect due to the absence of 161 days from 2.11.99 to 11.4.2000 in the year 2002 (viii) In addition to above leave without pay, urgent leave, earned CWP No. 4026 of 2012 7 leave and leave of other types has been sanctioned for absent of 4 days 3.12.88 to 3.1.89, 3 days 10.4.90 to 12.4.90, 17 days 24.7.90 to 9.8.90, 13 days 1.3.91 to 14.3.91, 4 days 22.3.92 to 26.3.92, 7 days 8.10.92 to 14.10.92, 10 days 26.3.93 to 5.4.93, 8 days 26.3.93 to 3.10.93, 18 days 29.9.94 to 17.10.94, 5 days 9.12.94 to 13.12.94, 19 days 12.2.95 to 3.3.95, 1 day 25.3.95, 26 days 3.9.95 to 8.10.95, 7 days 6.1.97 to 13.1.97, 2 days 26.2.97 to 27.2.97, 2 days 7.3.97 to 8.3.97, 7 days 15.3.97 to 18.4.97, 25 days 7.3.98 to 31.3.98, 39 days 11.6.98 to 20.7.98, 43 days 15.4.98 to 16.4.98 and 3.8.98 to 14.9.98, 13 days 20.10.98 to 2.11.98, 21 days 5.5.01 to 26.5.01, 35 days 29.1.01 to 5.3.01, 5 days 21.6.01 to 25.6.01, 283 days 17.11.01 to 21.12.01, 7.2.02 to 2.5.02, 3.5.02 to 2.6.02 and 14.7.02 to 26.11.02, 7 days 21.10.03 to 9.10.03, 69 days 17.10.93 to 25.12.93, 190 days
17.2.03 to 26.8.03, 9 days 24.1.05 to 2.2.05, 103 days 25.12.03 to 12.2.04 and 2.3.04 to 24.4.04, 102 days 2.7.04 to 11.10.04."
On this basis, it has been concluded by the punishing authority that the petitioner is a habitual absentee and he cannot reform himself which shows the carelessness, irresponsibility, indiscipline and negligence in duty on the part of the petitioner which proved the gravest act of misconduct of the petitioner. CWP No. 4026 of 2012 8
The punishing authority has, on the basis of this conduct of the petitioner, rightly come to a conclusion that negligent and indisciplined member of a police force does not deserve sympathy and, therefore, after considering the length of service of the petitioner, has concluded that dismissal from service would be the appropriate punishment to be imposed on the petitioner and he has been held not entitled to the pensionary benefits. The order of punishment imposed upon the petitioner is based on the facts and there is no illegality committed by the punishing authority while imposing the said punishment which would call for any interference by this Court in exercise of its writ jurisdiction.
It would not be out of way to mention here that the Supreme Court in the cases of Ex-Constable Sat Pal vs. State of Haryana, 1998 (2) SCT 408 and Rajesh Kumar vs. State of Haryana and others, 2005 (3) SCT 512, has held that the absence from duty would amount to gravest act of misconduct in a disciplined force such as department of police.
Finding no merit in the present writ petition, the same stands dismissed.
(AUGUSTINE GEORGE MASIH )
March 02, 2012 JUDGE
pj