Punjab-Haryana High Court
Randhir Singh vs Dy Inspector General Of Police Ambala ... on 30 July, 2004
Equivalent citations: (2004)138PLR553
Author: J.S. Khehar
Bench: J.S. Khehar
JUDGMENT J.S. Khehar, J.
1. The petitioner was discharging his duties as confirmed Constable at Police Lines, Jind when he was placed under suspension on account of pendency of a criminal case against him. It is not a matter of dispute that the petitioner was acquitted in the criminal case which was the basis of placing him under suspension.
2. During his suspension, the petitioner proceeded on 2 days sanctioned leave. After having availed the aforesaid leave, he was to resume his duties on 26.1.1984. He, however, reported back to the Police Lines, Jind on 26.4.1984 i.e., after having absented himself for a period of 3 months.
3. A charge sheet was issued to the petitioner requiring him to show cause why disciplinary proceedings should not be initiated against him for his aforestated wilful absence from duty. Finding his reply unsatisfactory, a regular departmental inquiry was conducted. The Inquiry Officer in his report found the petitioner guilty of wilful absence from duty. Whereupon, a show cause, notice proposing the punishment of dismissal from service was issued to him. The petitioner submitted his reply thereto reaffirming the defence raised by him before the Inquiry Officer, namely that he had fallen ill and had remained under treatment of a private lady doctor Santosh Rattan from 26.1.1984 to 25.4.1984. The case set up by the petitioner was, that as soon as he was declared fit to resume his duties, he had reported for duty at the Police Lines, Jind. Finding no justification in the petitioners' response to the show cause notice, he was dismissed from service by the Superintendent of Police Jind vide order dated 7.12.1984.
4. Dissatisfied with the dismissal order dated 7.12.1984, the petitioner preferred an appeal under Rule 16.29 of the Punjab Police Rules, to the Deputy Inspector General of Police, Ambala Range. Ambala Cantt. The aforesaid appeal was declined by the Appellate Authority on 13.5.1986. Pursuant to the dismissal of his appeal, the petitioner moved a memorial to the Governor of the State of Haryana, which was also rejected and a communication to the aforesaid effect dated 6.4.1988 was addressed to him by the Financial Commissioner and Secretary to Government of Haryana, Home Department. Having exhausted all his remedies, the petitioner has approached this court by filing the instant writ petition.
5. The first contention of the learned counsel for the petitioner is that the petitioner cannot be required to discharge duties during the period of suspension. In conjunction with the aforesaid contention learned counsel further submits, that a suspended employee cannot be required to mark his attendance. In order to substantiate his aforesaid contention, reliance has been placed on a Division Bench judgment of this Court in Constable Om Parkash vs. State of Haryana and Ors.,1 1994(2) Recent Services Judgments 791. Having relied upon various judgments rendered by this Court, in the judgment referred to above, this court arrived at the conclusion that no work or duty can be taken from a person during the period of his suspension nor can an employee be required to attend daily parade as that would amount to taking duty from him. In the peculiar circumstances of the aforesaid case, this court required the punishing authority to reconsider the quantum of punishment inflicted on the petitioner especially in the background of Rule 16.2 of the Punjab Police Rules, wherein the length of service of an employee has to be kept in mind before the punishment of dismissal is inflicted upon an employee.
6. So as to controvert the aforesaid contention of the learned counsel for the petitioner, Mr. M.S. Sindhu, Deputy Advocate General, Haryana has placed reliance on a Division Bench judgment rendered by this Court in State of Punjab and Anr. vs. Constable Daljit Singh,2 1998 (2) Recent Services Judgments 70. In the aforesaid judgment, this court interpreted Rule 16.21 of the Punjab Police Rules, i.e., the very Rule under which the petitioner herein was placed under suspension and arrived at the conclusion that an employee of the Police Department under the mandate of the aforesaid Rule, is required to remain present in the Police Lines, to attend the roll calls and to perform such duties as may be assigned to him including attending of parades etc. On the basis of the aforesaid judgment, learned counsel for the respondents vehemently contends that it is not open to an employee to absent from duty even during the period of his suspension.
7. In conjunction with the aforesaid judgment, learned counsel for the respondents has also placed reliance on a decision rendered by the Apex Court in State of Punjab and Ors. v. Dharam Singh,3 1997(2) S.C.C. 550, wherein the Supreme Court interpreted Rule 16.21 of the Punjab Police Rules. While interpreting Rule 16.21 the Supreme Court observed as under:-
"A reading of it would clearly indicate that even during the period of suspension the police officer is required to attend to roll-call and be available to the authorities. The payment of subsistence allowance as ordered under the suspension rule is one facet of it and his duty to be present is ancther. Non-payment of subsistence allowance does not entitle a delinquent officer to be absent from duty. It is his duty to claim subsistence allowance, go to the office and collect subsistence allowances and if it is not paid, necessary representation to the higher authorities and, if the grievance is not redressed, to the appropriate forum seeking payment, may be made. But that does not mean that the delinquent officer in the face of the express rule, can absent himself from duty. Under these circumstances the conclusion reached by the disciplinary authority that he was willfully absent from duty is well justified."
8. In view of the judgment rendered by this Court in Constable Daljit Singh's case (supra) and that of the Apex Court rendered in Constable Dharam Singh's case (supra) wherein Rule 16.21 of the Punjab Police Rules was expressly interpreted,there is no room for any doubt that a suspended employee can be required to mark his attendance and perform such duties as he may be required to discharge including attending of parades etc. In other words an employee cannot abstain from duty merely on account of the fact, that he is under suspension. Furthermore, in view of the judgment rendered by the Supreme Court in Dharam Singh's case (supra) it is inevitable to conclude that absence from duty even during the period of suspension amounts to a mis-conduct and justifies an appropriate punishment since the Apex Court also arrived at the aforesaid conclusion in the said situation.
9. Having not been able to satisfy this Court that the petitioner had not misconducted himself on account of his absence during the period of suspension learned counsel for the petitioner advanced another submission namely that the punishing authority had not taken into consideration the length of service of the petitioner while imposing (upon him) the punishment of dismissal from service. In this context, learned counsel for the petitioner points out that the petitioner had factually rendered service in excess of 10 years prior to the incident in question and therefore, had earned himself pensionary rights even before the incident of willful absence from duty occurred. Relying on Rule 16.2 of the Punjab Police Rules, it is sought to be contended that the Punishing Authority as well as the Appellate Authority while considering the quantum of punishment to be inflicted upon him, had not expressly taken into consideration the fact that he would be deprived of retiral benefits in case the punishment of dismissal from service was imposed on him. Rule 16.2 of the Punjab Police Rules is being extracted hereunder;-
"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 be length of service of the offender and his claim to pension.
"Explanation.- For the purposes of sub-rule (1), the following shall, interalia 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 in discipline amongst fellow policemen;
(v) promoting feeling of enmity or hatered 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 life"
(2) An enrolled police officer sentenced judicially to rigorous imprisonment exceeding one month or to any other punishment not less severe, shall if such sentence is not quashed on appeal or revision, be dismissed. An enrolled police officer sentenced by a criminal court to a punishment of fine or simple imprisonment, or, both or to rigorious imprisonment not exceeding one month, or who, having been proclaimed under Section 87 of the Code of Criminal Procedure fails to appear within the statutory period of thirty days may be dismissed or otherwise dealt with at the discretion of the officer empowered to appoint him. Final departmental orders in such cases shall be postponed until the appeal or revision proceedings have been decided, or until the period allowed for filing an appeal has lapsed without appetlate or revisionary proceedings having been instituted. Departmental punishments under this rule shall be awarded in accordance with the powers conferred by rule 16.1bb (3) When a police officer is convicted judicially and dismissed or dismissed as a result of a departmental authority in consequence of corrupt practices the conviction and dismissal and its cause shall be published in the Police Gazette. In other cases of dismissal when it is desired to ensure that the officer dismissed shall not be re-employed elsewhere, a full descriptive roll with particulars of the punishments, shall be sent for publication in the Police Gazette."
So as to substantiate his aforesaid contention, learned counsel for the petitioner has relied upon a Division Bench judgment rendered by this Court in "Constable Shiv Charan vs. The Superintendent of Police, Gurgaon District Gurgaon and Orss.4 1998 (3) Recent Services Judgments 151 wherein while interpreting Rule 16.2 of the Punjab Police the court held as under:-
"In the case in hand, the disciplinary authority did not direct its attention to the requirement of Rule 16.2. It did not consider the length of service of the appellant, the record of service and the circumstances created due to the order passed by the Superintendent of Police (Vigilance Cell), Irrigation Department without the sanction of the Deputy Inspector General of Police. Rather, he straightaway dismissed the appellant by observing that there is no extenuating circumstances for taking a lenient view. In our opinion, the failure of the respondent No.1 to examine the case of the appellant in a correct perspective of Rule 16.2 has caused grave prejudice to him and therefore, the same deserves to be quashed."
I have perused the order of punishment dated 7.12.1984 (Annexure P-3). The punishing authority while inflicting the punishment of dismissal from service on the petitioner admittedly did not take into consideration the fact that the petitioner had rendered more than 10 years service entitling him to pensionary benefits. The punishing authority also did not take into consideration the fact that the petitioner had not committed any act of omission or commission described as "gravest acts of misconduct" by the rule itself, while inflicted the gravest punishment prescribed. In its aforesaid action the authorities obviously did not follow Rule 16.2 in its letter and spirit. It is mandatory for the punishing authority to take into consideration the length of service of an employee and his claim to pension before inflicting the punishment of dismissal from service under Rule 16.2 of the Punjab Police Rules.
10. The seriousness of the delinquency committed by the petitioner in the instance case, is substantially diluted on account of the fact that he had remained absent only during the period he was under suspension. Absence from duty during the period of suspension cannot be equated with the absence from duty during active duty. The Supreme Court in Dharam Singh's case (supra) arrived at the conclusion that the appropriate punishment to be inflicted upon the respondent therein on account of his absence from duty during the period of suspension was that of compulsory retirement from service, rather than removal from service. Relying upon the judgment rendered by the Apex Court in Dharam Singh's case (supra) and keeping in mind the fact that the absence of the petitioner was only during the period of suspension and further that the respondents did not take into consideration his length into service preceding his alleged absence from duty (which in itself was admittedly sufficient to earn him pension), does not justify the punishment of dismissal from service. I am satisfied that the ends of justice would be met if the aforesaid punishment inflicted upon the petitioner is substituted with the punishment of compulsory retirement from service on the basis of the para meters laid down by the Apex Court in Dharam Singh's case (supra) wherein also for an allegation similar to the one raised in the instant case, the Supreme Court substituted the punishment of removal from service to that of compulsory retirement from service.
Disposed of in the aforesaid terms.