Punjab-Haryana High Court
Ex. Constable Harikishan vs State Of Haryana And Others on 10 May, 2013
Author: Surya Kant
Bench: Surya Kant
LPA-929-2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
LPA-929-2013 (O&M)
Date of Decision: May 10, 2013
Ex. Constable Harikishan
...Appellant
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. Harish Nain, Advocate,
for the appellant.
SURYA KANT, J.
[1] Notice of motion. [2] On the asking of the Court, Mr. R.D. Sharma, learned
Deputy Advocate, General, Haryana, accepts notice on behalf of the respondents. Let two copies of the appeal be handed over to the learned State counsel during the course of day. [3] This letters patent appeal is directed against the order dated 22.11.2012, whereby the learned Single Judge has dismissed the writ petition challenging the order of dismissal from service as well as appellate/revisional orders passed by the departmental authorities.
[4] The appellant was recruited as a Constable in the Haryana Police on 29.9.1975. While he was posted at Police LPA-929-2013 (O&M) 2 Station, Uchana, he absented from duty on 15.9.1990 and returned back on 17.9.1990. He again absented and joined back on 22.10.1990, after one month and five days. The appellant was charge-sheeted on the ground of absence from duty. Departmental enquiry was held in which he was found guilty and accepting that report, the Superintendent of Police, Jind, dismissed the appellant from service. He preferred departmental appeal and revision, which were also dismissed up to the highest authority i.e. the Director General of Police, Haryana. The last order being passed on 10.6.1994 (Annexure P-9), by the Director General of Police, Haryana. The appellant immediately approached this Court in September, 1994, but his writ petition has been dismissed by the learned Single Judge by relying upon the decision of Hon'ble the Supreme Court rendered in the case of Union of India v. Ghulam Mohd. Bhat, (2005) 13 SCC 228. [5] The short grievance of the appellant raised in this appeal is that before the reported absence from duty for a period of over one month, he had satisfactorily served the department for more than 16 years, hence, his claim for pension ought to have been kept in view by the disciplinary authority or the superior authorities, keeping in view Rule 16.2 of the Punjab Police Rules, 1934, as applicable to the State of Haryana (for brevity, 'the Rules').
[6] Rule 16.2 of the Rules obligates the competent LPA-929-2013 (O&M) 3 authority to take into consideration the length of service/claim for retiral benefits before formulating an opinion about the punishment to be awarded. The Rules also contemplate that the punishment of dismissal from service shall be awarded only for the gravest misconduct.
[7] The question whether absence from duty by a member of the disciplined police force amounts to gravest misconduct or not, is no longer res integra and in a catena of decisions it has been ruled that it can amount to gravest misconduct.
[8] As regards to the pensionary benefits based upon the total length of service, in our considered view, it is only a mitigating circumstance which can be appropriately looked into by the departmental authorities, who are the custodian of the service record as well as antecedent reports of an employee. [9] We find from the record that the appellant did serve for more than sixteen years before his dismissal from the service. It also appears that though earlier also he had absented from duty for some days, but no punishment was inflicted and those absence period were regularised by censures. What can be the impact of those orders on pension claim within the purview of Rule 16.2 of the Rules, is an issue which we need not to pronounce, leaving it to the discretion of the departmental authorities.
LPA-929-2013 (O&M) 4[10] Since the appellant has already exhausted the departmental remedies, we dispose of this appeal with liberty to him to submit a mercy petition-cum-memorial before the Director General of Police, who shall consider and dispose of the same in the light of the observations made herein above, if it is permissible under the rules/Government instructions. Let appropriate orders be passed expeditiously and preferably within a period of four months from the date of submission of such mercy petition-cum-memorial.
(SURYA KANT)
JUDGE
(NARESH KUMAR SANGHI)
May 10, 2013 JUDGE
Pkapoor