Punjab-Haryana High Court
Ex. Constable Baljeet Singh vs State Of Haryana And Others on 24 July, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 13803 of 2012
Date of Decision : 24.7.2012
Ex. Constable Baljeet Singh ......... Petitioner
Versus
State of Haryana and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present:- Mr. R.A. Sheoran, Advocate, for the petitioner.
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioner has approached this Court impugning the order of dismissal dated 19.2.2010 (Annexure-P-5) passed by the Superintendent of Police, Mewat at Nuh on the ground of being absent from duty, order dated 22.3.2011 (Annexure-P-7) passed by the Inspector General of Police, South Range, Rewai-respondent No. 3 rejecting the appeal preferred by the petitioner and order dated 25.5.2012 (Annexure-P-8) passed by the Director General of Police, Haryana-respondent No. 2 dismissing the revision petition preferred by him.
Petitioner states that he was appointed as Constable in Haryana police on 4.12.1998 and was posted in Mewat district. On 3.11.2008, petitioner was bitten by a mad dog for which he got treatment from Community Health Centre, Nuh (Mewat). During this period, family members of the petitioner were falsely implicated in a murder case and they were kept in judicial custody. Petitioner in the light of these circumstances applied for 140 days' earned leave on 4.11.2008. On this application, CWP No. 13803 of 2012 -2- petitioner was granted only two days' leave by the Superintendent of Police, Mewat. Due to the family circumstances, petitioner went into depression and could not re-join duty. He got treatment from Vaid Hari Parkash Sharma, Chief Medical Officer, Shree Mukund Ayurved Bhawan, Chhapar, District Bhiwani, who issued a certificate dated 10.11.2008 (Annexure-P-2) that petitioner was suffering from disease of depression and it was essential for him to take medicine and was also advised bed rest with effect from 10.11.2008 to 4.8.2009. Since the petitioner did not join duty after the expiry of his leave, in the meantime, petitioner was transferred from Escort duty, Nuh to Police Post Khori Kalan and was relieved, vide rapat No. 13, dated 10.11.2008. Petitioner did not join duty at the place of posting, i.e. Police Post Khori Kalan and accordingly he was marked absent, vide rapat No. 9, dated 29.11.2008. A notice was sent through one Constable Arvind Kumar to join duty at his residential address which he refused to take nor he did come present on duty. Thereafter, he was contacted on his mobile phone by the establishment branch to come present on duty, but he refused to do so. Despite various messages sent and intimations on his mobile phone, he remained absent from duty. Accordingly, it was decided to initiate departmental inquiry against the petitioner, vide order dated 29.5.2009.
Notice was issued to the petitioner to join inquiry, who came present on 5.8.2009 when the list of allegations, list of witnesses and list of documents were supplied to him. He denied the allegations levelled against him, on which the prosecution proceeded to record evidence in the departmental inquiry. Witnesses were examined in the presence of petitioner and he was given opportunity to cross examine the same, which the petitioner did not avail of. After conclusion of the evidence of the prosecution CWP No. 13803 of 2012 -3- witnesses, chargesheet was prepared by the Enquiry Officer on 2.9.2009 against the petitioner, which was served upon him, according to which petitioner had willfully absented himself from duty from 10.11.2008 to 4.8.2009. This chargesheet was served upon the petitioner on 8.9.2009 after the approval of the Superintendent of Police, Mewat and time was granted to the petitioner to file reply and to examine witnesses in his defence. Petitioner denied the allegations levelled against him in chargesheet and submitted an application for producing two defence witnesses. The defence witnesses were examined during the departmental inquiry. Both these witnesses were related to the petitioner and they alleged that because of registration of a criminal case against the family members of the petitioner and there being no other person to look after family except the petitioner, he could not join duty. He was bitten by a mad dog for which he underwent treatment. He was under deep mental tension and he could not come present on duty.
Another opportunity after recording the defence evidence was given to the petitioner to submit the written statement and for this purpose, seven days were granted. Petitioner did respond to the same and stated that he had undergone treatment and admitted the fact that he was contacted on mobile phone by Constable Arvind Kumar when he visited his house to serve him with the notice to join duty and the petitioner had informed that he would receive the notice after coming back from Chandigarh and would also join duty immediately after recovering from illness. Petitioner has stated that he had taken treatment from a desi Hakeem and after his recovery, he will join duty. After considering the evidence and the statement of the petitioner, Enquiry Officer, who was a Deputy Superintendent of Police, Ferozepur CWP No. 13803 of 2012 -4- Jhirka submitted his report on 30.9.2009, holding the petitioner guilty of willful absent from duty from 10.11.2008 to 4.8.2009.
A show cause notice dated 10.11.2009 (Annexure-P-4) thereafter was served upon the petitioner by the Superintendent of Police, Mewat- respondent No. 4. On receipt of the inquiry report submitted by the Enquiry Officer, copy of the inquiry report was also given to the petitioner. Petitioner responded to the show cause notice and he was given a personal hearing. On considering the complete record, Superintendent of Police, Mewat found that the reply submitted by the petitioner did not carry any weight and rejected the same. Past record of the petitioner was taken into consideration, according to which he had been sanctioned 348 days leave without pay for having been absent from duty on 14 different occasions. He had been imposed punishment of stoppage of three future annual increments with permanent effect for having been absent from duty for a period of 122 days and stoppage of one future annual increment with permanent effect for having been found absent from duty for a period of 39 days. On this basis and the proved charges against him, the punishing authority came to the conclusion that the petitioner is a habitual absentee and he had rendered himself totally incorrigible for being remained in service and imposed a punishment of dismissal from service, vide order dated 19.2.2010 (Annexure-P-5) An appeal was preferred by the petitioner against this order of Superintendent of Police, Mewat at Nuh, which was rejected, vide order dated 22.3.2011 (Annexure-P-7) and thereafter revision preferred by the petitioner was also rejected by the Director General of Police, Haryana, vide order dated 25.5.2012 (Annexure-P-8). It is, at this stage, petitioner has approached this Court by way of present writ petition.
CWP No. 13803 of 2012 -5-
It is the contention of the counsel for the petitioner that the petitioner has not been given opportunity to cross examine the witnesses during the inquiry proceedings nor has he been served with the notices to join duty. He makes reference to the statement of Constable Arvind Kumar who has stated that he had visited the house of the petitioner, but did not find him there and after obtaining mobile number from his son, had called up the petitioner on the same who had stated that he would return back from Chandigarh and receive the notice. He on this basis contends that the chargesheet issued upon the petitioner that he had refused to accept the notice is not sustainable. This contention of the counsel for the petitioner cannot be accepted as is apparent from the inquiry report that the petitioner was duly served with the show cause notice and he was made aware of his absence from duty. Petitioner had been contacted on his mobile phone which fact is not disputed by him. Rather in the written reply, he has admitted this aspect. Despite this, petitioner did not join duty and absented himself without any intimation. No request was sent by him after the first application was submitted for grant of further leave when he was granted two days casual leave, what to say of getting it sanctioned from the competent authority. Inquiry Report (Annexure-P-3) clearly indicates that the statements of the witnesses were recorded in the presence of the petitioner and he was given due opportunity to cross examine the witnesses, but he failed to do so. Even in the appeal, which was preferred by him against the order of his dismissal, it is not mentioned that he was not given any opportunity to cross examine the witnesses during the inquiry proceedings, thus this ground is now an afterthought.
CWP No. 13803 of 2012 -6-
Another ground, which has been pressed into service by the counsel for the petitioner is that, no Presenting Officer was appointed by the punishing authority during the inquiry and the Enquiry Officer himself acted as an investigator, prosecutor and judge. He contends that the inquiry report submitted by the Enquiry Officer thus cannot sustain in the light of the judgment of the Hon'ble Supreme Court in the case of State of Uttaranchal and others Versus Kharak Singh 2008(4) RSJ 587. On considering the judgment of the Hon'ble Supreme Court when it was asked by the Court as to under what rule it was mandated that the Presenting Officer should be appointed during the inquiry proceeding, counsel for the petitioner could not referred to any rules/instructions. He was unable to point out as to what prejudice has been caused to the petitioner by non appointment of the Presenting Officer during the inquiry proceeding. There is no bias against the Enquiry Officer nor are there any allegations of malafides. Thus this ground, which has been pressed into service by the petitioner's counsel, cannot sustain. It would not be out of way to mention here that this plea was never raised by the petitioner either before the appellate authority or before the revisional authority.
Another argument, which has been raised by the counsel for the petitioner is that, the defence of the petitioner and the statements of defence witnesses has not been considered by the Enquiry Officer and the punishing authority. This assertion of counsel for the petitioner is totally misplaced as the inquiry report shows proper consideration of the statements of these witnesses. What has been pressed by the counsel for the petitioner is that the certificate about the illness of the petitioner issued by Vaid Hari Parshad Sharma, which is dated 10.11.2008 (Annexure-P-2), has not been taken into CWP No. 13803 of 2012 -7- consideration. A perusal of the same would show that this certificate is a manipulated document which has been obtained by the petitioner during the inquiry proceedings. A perusal of the same would also show that it has been issued on 10.11.2008 where it is mentioned that it is necessary for the petitioner to take medicine and was also advised bed rest i.e. from 10.11.2008 to 4.8.2009. Strangely enough, this is the period for which the petitioner remained absent from duty. It is anyone's guess as to how the Vaid could foresee that the petitioner would be on bed rest from 10.11.2008 till 4.8.2009. It is exactly the period of absence of the petitioner from duty. It would not be out of way to mention here that this certificate was not produced by the petitioner during inquiry proceedings. Thus, this argument of counsel for the petitioner also deserves rejection.
It has been asserted by the counsel for the petitioner that the services of the petitioner have been terminated for his absence from duty which as per the provisions contained in Rule 16.2 of the Punjab Police Rules (in short 'PPR') cannot be made a ground for dismissal from service as order of dismissal can only be passed in a gravest acts of misconduct which has been elaborated in the explanation to the rule. This aspect has been duly considered by this Court in CWP No. 4782 of 2010 titled as Beer Singh, Ex. Constable No. 2392/FBD Versus State of Haryana and others, decide on 14.3.2012 which reads 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 CWP No. 13803 of 2012 -8- 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.-
(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."
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 Versus Gurdip Singh, 1995 (1) RSJ 641, that even a single act of misconduct can, in a given situation, amount CWP No. 13803 of 2012 -9- 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 Versus Inspector General of Police and others, 1967 SLR 807, it has been held that the use of word 'acts' did not exclude a 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.
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 CWP No. 13803 of 2012 -10- 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 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 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 CWP No. 13803 of 2012 -11- 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." A feeble effort has been made by counsel for the petitioner to contend that the earlier conduct of the petitioner has been taken into consideration and made the basis for passing the order of dismissal. This contention of counsel for the petitioner also cannot be accepted as Rule 16.2 of the PPR itself suggests that the earlier service and his conduct, where he had on various occasions remained absent from duty and has been punished, need to be looked at for coming to a conclusion that the official has become incorrigible and unfit for police service.
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
(AUGUSTINE GEORGE MASIH) JUDGE 24.7.2012 sjks