Punjab-Haryana High Court
Surajmal No.411 Ehc vs The State Of Haryana And Others on 29 May, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
C.W.P.No.10570 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
C.W.P.No.10570 of 2012
Date of Decision:- 29.05.2012
Surajmal No.411 EHC ....Petitioner(s)
vs.
The State of Haryana and others ....Respondent(s)
***
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
***
Present:- Mr.Naveen Daryal, Advocate,
for the petitioner.
***
AUGUSTINE GEORGE MASIH, J.
Petitioner has approached this Court praying for a writ of certiorari for quashing order dated 31.8.2010 (Annexure P-4) passed by the Superintendent of Police, Bhiwani vide which he has been dismissed from service for remaining wilfully absent for a period of 84 days and 19 hours without any intimation or justification and order dated 3.4.2011 (Annexure P-6) vide which the appeal preferred by the petitioner before the Inspector General of Police-respondent No.3 stands dismissed.
It is the contention of the counsel for the petitioner that the order of dismissal passed by the Punishing Authority is violative of Rule 16.2(1) of the Punjab Police Rules, 1934 as applicable to State of Haryana (hereinafter referred to as 'the Rules') as absence from duty is not a gravest act of misconduct which would attract the punishment of dismissal from C.W.P.No.10570 of 2012 -2- service. Reliance has been placed upon a Division Bench judgment of this Court passed in the case of Dhan Singh vs. State of Haryana and others, 2008 (3) SCT 816. His further contention is that the petitioner being ill was unable to join duty on his transfer from District Fatehabad to District Bhiwani, which has not been taken into consideration by the respondents. His further submission is that while passing the impugned order dated 31.8.2010, earlier punishments imposed upon the petitioner have been taken into consideration which amounts to double jeopardy and, therefore, the impugned order cannot sustain. His contention is that the procedure as prescribed under the Statutory Rules governing the departmental enquiry has not been complied with nor the principles of natural justice have been complied with as he was not given due opportunity to defend himself during the departmental enquiry. He, accordingly, submits that the impugned order deserves to be set aside and the writ petitioner be entitled to reinstatement in service with all consequential benefits.
I have considered the submissions made by the counsel for the petitioner and have gone through the records of the case.
Petitioner on transfer vide order dated 27.8.2009 from District Fatehabad to District Bhiwani was relieved on 31.8.2009 at 5.20 p.m. He did not report in Police Lines Bhiwani till 24.11.2009 at 11.20 a.m. after remaining wilfully absent for a period of 84 days and 19 hours. While submitting his arrival report, he did not give any reason for his late arrival. The Deputy Superintendent of Police, Siwani was appointed as an enquiry officer to ascertain the facts and accordingly, he served the petitioner with summary of allegations, list of prosecution witnesses and copies of the C.W.P.No.10570 of 2012 -3- documents on 12.1.2010 under proper receipt, on which the prosecution intended to rely on during the departmental enquiry initiated against him. Statements of seven prosecution witnesses were recorded during the enquiry in the presence of the petitioner and he was allowed to cross- examine them. On completion of the prosecution evidence, Enquiry Officer found the allegations prima facie made out against the petitioner and accordingly, prepared a draft charge-sheet which was duly approved by the Superintendent of Police, Bhiwani, copy of the same was duly served upon the petitioner on 2.3.2010.
He was given adequate time and opportunity to submit his defence evidence. On 4.3.2010, petitioner submitted an application to the Enquiry Officer stating therein that he did not want to produce any witness nor did he want to file any written defence statement. In the light of this application, the Enquiry Officer proceeded to record his findings and submitted his report on 11.3.2010 holding him guilty of the charges levelled against him.
The Punishing Authority agreed with the findings recorded by the Enquiry Officer and served a show cause notice dated 16.4.2010 upon the petitioner proposing the punishment of dismissal from service. This show cause notice was received by the petitioner on 30.4.2010, to which no reply was filed by him although he was given time to do so. It would not be out of way to mention here that in the show cause notice served upon the petitioner, on receipt of the findings of the Enquiry Officer, reference was made by the Punishing Authority to the earlier service record of the petitioner and the punishment imposed therein which related to his earlier C.W.P.No.10570 of 2012 -4- absence from duty. Petitioner again absented himself from Police Lines Bhiwani and, therefore, letter dated 17.8.2010 was sent to him at his residential address which was served upon him on 19.8.2010 to appear before the Punishing Authority on 20.8.2010 at 10.00 a.m. for personal hearing and to put-forth his point of view, if any, with regard to the findings recorded by the Enquiry Officer. Petitioner chose not to appear before the Punishing Authority on 20.8.2010. Thereafter, another opportunity was given to him to appear in person by the Superintendent of Police, Bhiwani on 27.8.2010 for which notice dated 23.8.2010 was sent to him, which was served upon him at his home address on 26.8.2010 but still the petitioner preferred not to appear before the Punishing Authority on the date fixed.
The Punishing Authority left with no option thereafter and then proceeded to finalize the departmental proceedings against the petitioner holding him guilty of wilfully absenting himself from duty for a period of 84 days and 19 hours. Keeping in view the fact that the police force is a disciplined force and the petitioner has exhibited an irresponsible act of misconduct, found it to be a gravest act of misconduct and taking into consideration the earlier record of the petitioner, concluded that the petitioner was a habitual absentee. Repeated absence from duty established his incorrigibility and complete unfitness in police service, therefore, had proceeded to pass order dated 31.8.2010 dismissing him from service.
Appeal preferred by the petitioner was dismissed by the Inspector General of police, Hisar Range, Hisar vide order dated 3.4.2011 (Annexure P-6) against which the petitioner has preferred a revision C.W.P.No.10570 of 2012 -5- petition before the Director General of Police but with no result.
The first argument which has been raised by the counsel for the petitioner is that the order of punishment of dismissal from service dated 31.8.2010 is in violation of Rule 16.2 (1) of the Rules as absence from duty is not a gravest act of misconduct as specified and elaborated under the said Rule. Reliance has been placed upon the Division Bench judgment of this Court in Dhan Singh's case supra.
This contention of the counsel for the petitioner shall not detain this Court for any time as this Court in CWP No.4782 of 2010 Beer Singh vs. State of Haryana and others, decided on 14.3.2012 wherein while considering Rule 16.2(1) of the Rules as also the Division Bench judgment of this Court in Dhan Singh's case (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 sub-rule
C.W.P.No.10570 of 2012 -6-
(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 C.W.P.No.10570 of 2012 -7- 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 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 C.W.P.No.10570 of 2012 -8- 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 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 C.W.P.No.10570 of 2012 -9- 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 C.W.P.No.10570 of 2012 -10- 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."
In CWP No.l0860 of 2012 Sahib Singh vs. The State of Haryana and others, decided on 30.5.2012, it has been held as follows:-
"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 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 C.W.P.No.10570 of 2012 -11- 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."
The next contention which has been raised by the counsel for the petitioner justifying the absence of the petitioner from duty on his transfer is that he was suffering from jaundice and depression and, therefore, could not join duty at Bhiwani on his transfer from Fatehabad. This contention of the counsel for the petitioner cannot be accepted in the light of the fact that the petitioner preferred not to produce any evidence before the Enquiry Officer in his defence as is apparent from the impugned order dated 31.8.2010 passed by the Superintendent of Police, Bhiwani, wherein it has been specifically stated that the petitioner submitted an application to the Enquiry Officer on 4.3.2010 that he did not want to produce any witness and written defence statement. No documentary evidence has been attached along with the writ petition in support of the fact that the petitioner was unwell nor has it been specified as to from where he had taken treatment for his ailment. In the absence of any material on record, this contention of the counsel for the petitioner cannot be accepted.
Petitioner's counsel has submitted that by taking into consideration the previous punishments which have been imposed upon the C.W.P.No.10570 of 2012 -12- petitioner by the Punishing Authority for imposing the punishment of dismissal from service upon him vide impugned order dated 31.8.2010, would amount to double jeopardy, the same cannot be accepted in the light of the specific provisions of Rule 16.2 (1) of the Rules which does indicate that the earlier service record can be taken into consideration by the Punishing Authority for imposing punishment upon the delinquent employee. In any case, while imposing the punishment upon an employee, the earlier record does play an important role in formulating an opinion with regard to the overall conduct of the employee and his suitability and desirability of continuation in service. As per Rule 16.2 (1) dismissal shall be awarded only for a gravest act of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. This obviously means that the earlier conduct has also to be taken into consideration while imposing a punishment of dismissal. This contention of the counsel for the petitioner, thus, cannot be accepted.
Another plea which has been raised by the counsel for the petitioner is that the principles of natural justice have not been complied with as the petitioner has not been given ample opportunity to defend himself in the departmental proceedings. This contention of the counsel for the petitioner can also not be accepted as on all occasions petitioner has been duly given more than reasonable opportunities and time to defend himself. A perusal of the impugned order would show that in fact the petitioner himself had not availed any of those opportunities, details whereof have been mentioned in the facts which have been narrated herein above. At all steps, as per the statutory requirements, petitioner has been C.W.P.No.10570 of 2012 -13- duly informed about the enquiry proceedings and as a matter of fact, he had participated in the departmental enquiry himself but despite various efforts made by the Punishing Authority to obtain the presence of the petitioner for his personal hearing, he had preferred not to appear before the Punishing Authority, therefore, it cannot be said that the principles of natural justice have not been complied with. It would not be out of way to mention here that not only the petitioner was absent from duty for 84 days and 19 hours, but on earlier occasions also, he had been absenting himself from duty without intimation, details whereof find mentioned in the impugned order dated 31.8.2010 passed by the Superintendent of Police, Bhiwani, which read as follows:-
"I. In a regular DE, he was awarded a punishment of dismissal from police service for willful absence vide SP Fatehabad order No.253-ST dated 13.04.07, OB No.103/07. On appeal, the punishment of dismissal from police service was reduced to that of stoppage of five increments with permanent effect by the DGP (H) vide order No.6834-35/E-II dated 10.6.08, OB No.108/08. II. He had also remained absent from duty on different following occasions and his absence period was treated as leave without pay:-
27.10.01 to 28.10.01- 2 days OB No.345/2001 27.10.05 to 30.08.06- 308 days OB No.138/08 13.04.07 to 23.06.08- 437 days OB No.130/08 27.11.09 to 08.01.10- 43 days OB No.36/10" C.W.P.No.10570 of 2012 -14-
The punishment of dismissal from service imposed upon the petitioner on the basis of the cumulative effect of his absence from duty, as he is a habitual absentee, duly proves his incorrigibility and complete unfitness for police service and, therefore, the punishment imposed upon him is in consonance with the Statutory Rules governing the service and does not call for any interference by this Court.
Finding no merit in the present writ petition, the same stands dismissed.
May 29, 2012 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE