Punjab-Haryana High Court
Ex-Constable Ram Niwas vs State Of Haryana And Others on 7 August, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
C.W.P.No.19981 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
C.W.P.No.19981 of 2009
Date of Decision:- 07.08.2012
Ex-Constable Ram Niwas, No.74/Jind ....Petitioner(s)
vs.
State of Haryana and others ....Respondent(s)
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CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
***
Present:- Mr.Sanjeev Gupta, Advocate,
for the petitioner.
Mr.Harish Rathee, Sr.DAG, Haryana.
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AUGUSTINE GEORGE MASIH, J.
Counsel for the petitioner states that he has deposited the costs of ` 2000/- imposed vide order dated 3.11.2011.
Petitioner was enrolled as a Constable on 2.11.2000. He absented himself on 24.6.2007 at the evening roll call vide DDR No.25 at 8.00 p.m. while he was posted in Police Lines, Jind. He remained absent from duty and reported back on 18.12.2007 vide DDR No.28 at 6.05 p.m. His absence period was 176 days, 22 hours and 5 minutes. A regular departmental enquiry was conducted against the petitioner. The Inquiry Officer submitted his report holding the petitioner guilty for the absence from duty for the period mentioned above. On considering the report of the Inquiry Officer, a show cause notice was issued to the petitioner by the C.W.P.No.19981 of 2009 -2- Superintendent of Police, Jind on 13.9.2008, to which reply was submitted by him. Opportunity of personal hearing was afforded to him and he appeared before the Punishing Authority on 21.10.2008.
On considering the departmental enquiry, reply filed to the show cause notice and the submissions made by the petitioner at the time of personal hearing, the Punishing Authority-Superintendent of Police, Jind, did not find any substance in the submissions made by the petitioner and proceeded to pass an order dismissing him from service vide order dated 22.10.2008, for his absence from duty and repeated absenteeism which proved his incorrigibility to be retained in service. After passing this order, it was observed therein that the absence period from 24.6.2007 to 18.12.2007 has been sanctioned as extra-ordinary leave without pay.
Petitioner preferred an appeal before the Inspector General of Police, Hisar Range, Hisar, which was rejected. Thereafter, petitioner preferred a revision petition before the Director General of Police, Haryana which was also dismissed vide order dated 6.8.2009 (Annexure P-7). Petitioner, thus, has approached this Court impugning the action of the respondents dismissing him from service for absence from duty.
It is the contention of the counsel for the petitioner that the extreme punishment of dismissal from service and that too on the basis of absence from duty is not sustainable as the same is violative of Section 16.2 of the Punjab Police Rules, 1934 as applicable to Haryana (hereinafter referred to as 'the Rules'). He contends that the punishment of dismissal from service can be awarded to a police official for a gravest act of misconduct as provided under Rule 16.2 of the Rules. Explanation, which C.W.P.No.19981 of 2009 -3- has been provided under this Rule, details the gravest act of misconduct for which punishment of dismissal from service can be imposed. There are eight such acts which have been declared as gravest acts of misconduct and in none of them, absence from duty has been provided as a ground for taking action under Rule 16.2 (1). The Punishment, thus, imposed upon the petitioner is not sustainable. He has placed reliance upon a Division Bench judgment of this Court in Dhan Singh vs. State of Haryana and others, 2008 (3) SCT 816. Reliance has also been placed upon another judgment of a Division Bench of this Court in the case of The State of Punjab vs. Parkash Chand, 1992 (1) SCT 123 wherein it has been held that mere absence from duty without leave would not amount to a gravest act of misconduct under Rule 16.2 of the Rules.
The next submission which has been put-forth by the counsel for the petitioner is that when the period of absence has been ordered to be taken as leave without pay, the absence from duty having been condoned by the Competent Authority, order of dismissal cannot sustain. In support of this contention, reliance has been placed upon the judgment passed by this Court in the case of State of Punjab vs. Rur Singh (died) through LRs, 2000 (2) SCT 60.
On the other hand, counsel for the respondents submits that the petitioner had been absenting himself from duty on various occasions. For details, he has referred to para 3 of the preliminary submissions in the written statement filed, according to which petitioner had absented himself from duty on 32 occasions varying from few hours to as many as 43 days and 178 days. He, on this basis, contends that he is a habitual absentee and C.W.P.No.19981 of 2009 -4- the Competent Authority has found him incorrigible for continuing in service. He contends that even the reasons which have been assigned by the petitioner for being absent for such a long period of 176 days, 22 hours and 5 minutes, did not justify his absence. The stand taken by the petitioner is that he left the police lines because of death of his uncle. Thereafter, his sister died and then he became of an unstable mind and could join duty only after 176 days. This, counsel for the respondents states, itself shows that the petitioner was not serious about his duty. No reasons have been assigned by the petitioner for not even informing the authorities or applying for leave during the said period. In such circumstances, he has placed reliance upon a Division Bench judgment of this Court passed in LPA No.466 of 2010 Krishan Lal vs. State of Haryana and others, decided on 31.8.2010 where apart from absence from duty, it has come on record that earlier also, he had been absented himself from duty. Similarly reliance has been placed upon a Single Bench judgment of this Court passed in CWP No.11303 of 2010 Roshan Lal vs. State of Haryana and others, decided on 01.07.2010 wherein the Court had proceeded to deal with the judgment of this Court passed in Dhan Singh's case (supra) and has placed reliance upon various judgments of the Supreme Court and this Court wherein it has been held that even a single act of absence of a delinquent employee may amount to gravest act of misconduct.
As regards the contention of the counsel for the petitioner that the period of absence from duty stood condoned as the said period has been treated as leave without pay, he contends that this was only done to put the records straight and was never intended to condone the same. Had the C.W.P.No.19981 of 2009 -5- intention been so, there was no need to pass an order of dismissal. He, on this basis, contends that the writ petition deserves to be dismissed.
I have considered the submissions made by the counsel for the parties and with their assistance have gone through the records of the case.
Dealing with the first argument as raised by the counsel for the petitioner that the punishment of dismissal from service could not be imposed upon the petitioner for his absence from duty in the light of Rule 16.2 of the Rules read with explanation thereto, this Court had an occasion to deal with the same issue as raised in this writ petition, in CWP No.10860 of 2012, wherein while considering Division Bench judgment of this Court in Dhan Singh's cases (supra), it was held as follows:-
"For appreciating the scope and ambit of Rule 16.2 (1) of the Rules, 1934 and the explanation attached thereto, reproduction of the said Rule would be essential which reads as follows:-
"16.2 Dismissal-(1) 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 C.W.P.No.19981 of 2009 -6- sub-rule (1), the following shall, inter alia, be regarded as gravest acts of misconduct in respect of a police officer, facing disciplinary action.-
(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."
C.W.P.No.19981 of 2009 -7-
Rule 16.2 (1) deals with the
situation where the order of dismissal of a police officer can be passed. It provides that this punishment of dismissal shall only be awarded (i) for the gravest acts of misconduct and (ii) as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service of the officer. While passing such a punishment, regard is mandated to be had to the length of service of the offender and his claim to pension. Although 'gravest acts of misconduct' term has been used in the Rule but it has been held in State of Punjab vs. Gurdip Singh, 1995 (1) RSJ 641, that even a single act of misconduct can, in a given situation, amount to the gravest act of misconduct but the mandate of the rule making authority is clear that the punishment of dismissal from service has not to be awarded in the case of a misconduct of ordinary nature. In Bhagwat Parsad vs. Inspector General of Police and others, 1967 SLR 807, it has been held that the use of word 'acts' did not exclude a C.W.P.No.19981 of 2009 -8- single act of misconduct. In order to give effect to the legislative intent words in plural number may be construed to include the singular and the words importing the singular only, may be applied to plurality of acts, things or persons. In order to gauge gravity of misconduct, what matters, is not frequency but as obliguity or delinquency. It was for the police officer who judged the infraction of the police rules to determine the seriousness of the misconduct and to decide upon the suitability of the punishment. This would show that it is the gravity of the misconduct which would determine the punishment to be imposed upon the delinquent employee and for that such misconduct proving incorrigibility and complete unfitness for police service, if found, punishment of dismissal shall be awarded. Regard, however, under those circumstances, also shall be had to the length of service of the offender and his claim to pension, which again would be dependent upon the misconduct proved against the delinquent employee.C.W.P.No.19981 of 2009 -9-
Explanation to Rule 16.2 (1) has to be read in the context of the above. Although eight misconducts have been spelt out in this explanation, which have been mandated to be regarded as gravest acts of misconduct in respect of a police officer facing disciplinary action. If any of them are proved in the disciplinary proceedings to have been committed by a police official, nothing more is required as it would amount to a gravest act of misconduct. The word 'inter-alia' used between "the following shall" and "be regarded as gravest acts of misconduct in respect of a police officer, facing disciplinary action" in the explanation is very significant and indicates and explains the intent and purpose of the rule making authority. The word 'inter-alia', as per Chambers Dictionary, means 'among other things', which clarifies that there can be other acts of misconduct also which could be regarded as gravest acts of misconduct. Thus, assigning a restrictive meaning to the term 'gravest acts of misconduct' to those acts only, which have been mentioned in the C.W.P.No.19981 of 2009 -10- explanation, would be subtracting something from the rule itself as the intention of the rule making authority is not this. In Dhan Singh's case (supra), this aspect and the placement of the word 'inter-alia' used in the explanation has not been discussed and its effect has also not been considered. The explanation when read by giving effect to the expression 'inter-alia' and the place at which it finds mention would lead the Court to a conclusion, which is not in consonance with the one as reached in Dhan Singh's case. By not giving effect to the impression 'inter-alia' would virtually mean overlooking it as if the said expression did not exist in the rule itself which would result in obliterating it having the effect of virtually deleting it. This would amount to open and blatant violation of the simple meaning of the statute. It is a settled preposition of interpretation that each word used in the Statute has to be given effect to as per its literal meaning and effect and in doing so, effort should be made to fulfil the object with which the said word/expression has C.W.P.No.19981 of 2009 -11- been used by its framers.
In the light of the above, the contention of the counsel for the petitioner that the misconduct of absence from duty cannot be a gravest act of misconduct as it does not find mention in the Explanation to Rule 16.2(1), deserves to be rejected as depending upon the gravity of the misconduct, a single act of misconduct would fulfil the mandate of Rule 16.2 of the 1934 Rules subject however, to the qualifications attached thereto in the Rule itself."
Further, this 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 absence from duty is a gravest act of misconduct. Hon'ble the Supreme Court also in the case of State of U.P. vs. Ashok Kumar and another, AIR 1996 SC 736 has held absence from duty in a disciplined force to be an act which would amount to a gravest act of misconduct.
Thus, the opinion formed by the Punishing Authority that the misconduct of the petitioner C.W.P.No.19981 of 2009 -12- amounts to a gravest act of misconduct which is sufficient to award punishment of dismissal from service is in consonance with the Statutory Rules and is justified as the conduct of the petitioner does not leave any manner of doubt that he is incorrigible and completely unfit for police service as a police officer is required to be disciplined, committed, punctual and honest with impeccable integrity and above all showing respect for law. Keeping a police officer in service where he is absent from duty without intimation would create indiscipline and would encourage others also to indulge in such type of misconduct which would leave the police force a paralysed, ineffective and inactive force which cannot be permitted. It would not be out of way to mention here that after absenting from 3.2.2004, the petitioner had reported in Police Lines, Jind on 18.11.2004 at 1.30 p.m. but at the time of evening roll call on the same day, he had again absented himself and did not report back for duty till the date of passing of the order dated 19.1.2005 by the Superintendent of Police, Jind which further points out towards the conduct of the petitioner and, thus, no equity can be exercised in his favour."
C.W.P.No.19981 of 2009 -13-In the light of the above, the contention of the counsel for the petitioner cannot be accepted. Otherwise also, apart from the absence of the petitioner for 176 days, 22 hours and 5 minutes from 24.6.2007 to 18.12.2007, petitioner has been a habitual absentee as is apparent from para 3 of the preliminary submissions of the written statement, according to which he had been absenting from 2001 onwards till the date of his dismissal from some hours to some days and even for 36 and 43 days. Not a year has gone by, since his induction into service, when he has not absented himself from duty. Even after his absence from duty for which he was charge-sheeted, he has further on two occasions i.e. on 5.2.2008 for 7 hours and 30 minutes and on 13.2.2008 for 6 hours and 5 minutes absented himself which shows that he is not even now trying to improve his conduct. As such, his habitual absenteeism is clearly proved. In all, he has absented on 32 occasions during his short span of service of less than 10 years.
That apart, the reason assigned by the petitioner for remaining absent from duty also does not inspire confidence. He has, in his reply, submitted to the show cause notice stated that he came to know about the death of his uncle on receiving a telephone call. He left police lines for his native village and performed the last rites of his uncle. Unfortunately, after some time his sister also expired due to illness. Due to the sudden death of his uncle and sister, he was in a mental state of shock. He, thus, remained at home till he joined back on duty. No details about the death or the date of death of the uncle or sister are mentioned nor has any medical proof been produced or an assertion made that he has taken some medication for his C.W.P.No.19981 of 2009 -14- mental illness or depression. There is also no proof that he informed any authority about the deaths of his uncle and sister by sending any intimation verbally or in writing. The explanation, therefore, submitted for absence from duty and that too for a long period of 176 days does not inspire confidence. The order of dismissal, thus, imposed upon the petitioner is fully justified which does not call for any interference by this Court.
The contention of the counsel for the petitioner that in the order of dismissal from service dated 22.10.2008 itself, the period of absence i.e. 24.6.2007 to 18.12.2007 has been sanctioned as extraordinary leave without pay which would amount to condoning the absence period rendering the order a nullity, cannot be accepted. Had the intention been of condoning the absence period, the Punishing Authority, at the first instance, would not have passed order of dismissal and in any case, this is only with an intention to put the records straight. Support for this conclusion of mind can be had from the judgment of the Supreme Court in the case of Om Parkash vs. State of Punjab and others, 2011 (4) RSJ 542 where the Hon'ble Supreme Court in paras 10 to 14 held as follows:-
"10. The next contention that is raised is that the period of absence of the appellant having been regularised, the aforesaid charge of unauthorised absence would fall through and, therefore, the order of punishment is required to be set aside and quashed. We are unable to accept the aforesaid contention as period of the unauthorised absence was not condoned by the authority but the same was simply shown as regularised C.W.P.No.19981 of 2009 -15- for the purpose of maintaining a correct record.
11. A similar issue came to be raised in this Court several times. In the case of State of M.P. vs. Harihar Gopal, 1969 SLR 274 (SC), this Court noticed that the delinquent officer in failing to report for duty and remaining absent without obtaining leave had acted in a manner irresponsibly and unjustifiedly; that, on the finding of the enquiry officer, the charge was proved that he remained absent without obtaining leave in advance; that the order granting leave was made after the order terminating the employment and it was made only for the purpose of maintaining a correct record of the duration of service and adjustment of leave due to the delinquent officer and for regularising his absence from duty. This Court in the said decision held that it could not be accepted that the authority after terminating the employment of the delinquent officer intended to pass an order invalidating that earlier order by sanctioning leave so that he was to be deemed not to have remained absent from duty without leave duly granted.
12. Our attention is also drawn to the decision of this Court in Maan Singh vs. Union of India and others, 2003 (3) SCC 464 wherein a similar situation and proposition has been reiterated by this Court. There are a number of decisions of this Court where it has been C.W.P.No.19981 of 2009 -16- held that if the departmental authorities, after passing the order of punishment, passes an order for maintaining a correct record of the service of the delinquent officer and also for adjustment of leave due to the delinquent officer, the said action cannot be treated as an action condoning the lapse and the misconduct of the delinquent officer.
13. There is yet one more factor which stands against the appellant herein. It is indicated from the counter affidavit filed by the respondents 1 to 4 that the appellant had also been punished earlier to the aforesaid incident also with a punishment for leave without pay for total of 527 days on different occasions in service as per details below:-
13.11.1965 to 05.01.1996 - 54 days 25.07.1973 to 28.07.1973 - 4 days
04.10.1977 to 12.01.1978 - 120 days 13.01.1978 to 09.05.1978 - 118 days 25.10.1979 to 31.10.1979 - 6 days 10.02.1981 to 14.08.1981 - 185 days 13.10.1984 to 22.11.1984 - 40 days
14. Therefore, it is established that the appellant was a habitual absentee without leave and, therefore, he does not deserve any sympathy from this Court. In terms of the aforesaid order, we hold that there is no merit in this appeal which is dismissed but leaving the parties to bear C.W.P.No.19981 of 2009 -17- their own costs."
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
August 07, 2012 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE