Punjab-Haryana High Court
State Of Haryana And Others vs Jai Dev on 20 January, 2012
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
LPA No. 40 of 2012 (O&M)
Date of Decision: January 20, 2012
State of Haryana and others
...Appellants
Versus
Jai Dev
...Respondent
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
MITTAL
Present: Mr. Kamal Sehgal, Addl. AG, Haryana,
for the appellants.
1. To be referred to the Reporters or not?
2. Whether the judgment should be
reported in the Digest?
M.M. KUMAR, J.
1. The instant appeal under Clause 10 of the Letters Patent is directed against judgment dated 26.8.2011 rendered by the learned Single Judge holding that one act may not constitute gravest act of misconduct within Rule 16.2 of the Punjab Police Rules, 1934 (as applicable to the State of Haryana) [for brevity, 'the Rules']. Keeping in view more than 27 years of service rendered by the writ petitioner-respondent, learned Single Judge has held that the Punishing Authority while inflicting the punishment of dismissal has failed to apply its mind to the fact that the writ petitioner- respondent has rendered long years of service and his pension would be forfeited by the order of dismissal. The learned Single Judge also recorded a categorical finding that the Enquiry Officer or the Punishing Authority did not record any finding that the LPA No. 40 of 2012 (O&M) 2 misconduct of the writ petitioner-respondent was of such a nature which would prove incorrigibility and complete unfitness for the police service. The learned Single Judge also found that merely because the writ petitioner-respondent consumed liquor was also not sufficient to inflict the extreme punishment of dismissal particularly when no finding has been recorded that he had consumed liquor while on duty. Further quoting Rule 18.5(7) of the Rules, the learned Single Judge proceeded to hold as under:-
" As per contention of the learned counsel that as per medical report, the petitioner had consumed liquor as smell of alcohol was coming from his mouth. Consumption of alcohol in itself cannot be considered an act of misconduct under the Service Rules merely because as an employee is found under the influence of liquor, without anything more cannot be justified to award punishment of dismissal. The conduct of the petitioner is also clear from the fact that a commendation certificate has been awarded to the petitioner which was given to him even after passing of the order.
Keeping in view the total length of service and past service for which a commendation certificate was issued and also to the fact that nothing has been brought on record with regard to consumption of liquor or that the petitioner has done something or his act has affected the working of other employees in any manner. It has also not been proved on record that at a particular point of time, the petitioner was on his duty. The punishment LPA No. 40 of 2012 (O&M) 3 of dismissal is on the excessive side as he served the department for more than 27 years and by passing the dismissal order not only his right to pension has been deprived but he has been debarred from joining any other service which would affect not only the petitioner but dependent members of family also and ultimately the children would be the sufferer."
2. Mr. Kamal Sehgal, learned counsel for the appellants has argued that there is no rule of law that single act of indiscipline like consuming liquor while on duty would not constitute a gravest act of misconduct. According to the learned counsel such a grave misconduct could attract the extreme punishment of dismissal. Mr. Sehgal has maintained that the past record of the writ petitioner- respondent as reflected in the order dated 17.11.1992 (P-3), would also show that he was awarded punishment of censure in 1990 for having been found under the influence of liquor when he was posted as MLA Guard at Shahbad. Another punishment of censure was again inflicted in 1992 for missing uniform articles and identity card while he was posted at Police Station, Shahbad. He also suffered another punishment of stoppage of five annual increments with permanent effect in 1992 for unauthorised absence from duty from standing guard duty at the residence of Ex-Speaker, Haryana Vidhan Sabha at Kurukshetra. On the basis of the aforesaid, the Punishing Authority reached the conclusion that on account of continuous misconduct on the part of the writ petitioner-respondent incorrigibility and complete unfitness for police force stood proved.
3. A notice dated 16.10.1992 was issued to him reflecting his punishments inflicted in the past. He submitted his reply and LPA No. 40 of 2012 (O&M) 4 personal hearing was also afforded to him.
4. We have thoughtfully considered the submissions made by the learned counsel and are of the view that the opinion expressed by the learned Single Judge does not suffer from any legal infirmity warranting interference of this Court. The learned Single Judge has placed reliance on Rule 16.2 of the Rules to conclude that the consumption of liquor was not while the writ petitioner-respondent was on duty and secondly that for one lapse, the extreme punishment of dismissal had been awarded. The learned Single Judge has committed factual error because the finding recorded by the Disciplinary Authority is that the writ petitioner-respondent was on duty at the relevant time as would be evident from the reading of order dated 17.11.1992 (P-3):-
"..........The last contention of the defaulter that he was not on active on duty at that time is also of no help, in view of the statement of SI Gian Singh, PW-4 who stated that the defaulter was on duty at that time. Moreover, the defaulter was working as Incharge of the guard at that time and such act on his part was highly condemnable. ........"
5. The Disciplinary Authority has also taken into account long service rendered by the writ petitioner-respondent, as would be evident from the following para:-
" As regards punishments, the defaulter has 27½ years of service to his credit. This is not the first occasion that he has misconduct himself. Even earlier too in the year 90 he was found under influence of liquor, while posted at MLA guard at Shahabad. For this he was LPA No. 40 of 2012 (O&M) 5 lot of with the award of censure only. In the year 1992, he even lost his uniform articles and identity card and was mis-conduct and awarded a punishment of censure only. He again misconduct and absented himself from standing guard at the residence of Ex-Speaker, Hr. Vidhan Sabha at Kurukshetra and was awarded a sentence of stoppage of five annual increments. Despite giving opportunity in the hope that he will prove to be a good officer, he has rather continued in misconducting himself and has proved to be incorrigible and found complete unfit to remain in service. I, thus feel that the proposed punishment will meet the ends of justice. Therefore, I dismiss UGC Jaidev Singh No. 674/KKR from service with immediate effect."
6. However, there is nothing on record to show that the Disciplinary Authority was conscious of the fact that the writ petitioner-respondent would lose his pension as is required by Rule 16.2 of the Rules. In the absence of any application of mind concerning loss of pension, it would not be possible to conclude that the Rule in its true content and tenor has been taken into account. The aforesaid factual position is evident from the reading of penultimate para of the order passed by the Punishing Authority, which has been already reproduced in the preceding para of this judgment.
7. It is not sufficient for the Disciplinary Authority to record in a cryptic manner that the writ petitioner-respondent had rendered 27½ years of service. The aforesaid one sentence would not be sufficient compliance with the Rule 16.2(1), which reads LPA No. 40 of 2012 (O&M) 6 thus:-
"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."
8. The aforesaid Rule has been subject matter of interpretation by Hon'ble the Supreme Court in the case of State of Punjab v. Ram Singh Ex-
Ex-Constable Constable, le, (1992) 4 SCC 54.
54 In para 7 of the judgment, Rule 16.2(1) has been interpreted as under:-
"7. Rule 16.2(1) consists of two parts. The first part is referable to gravest acts of misconduct which entails awarding an order of dismissal. Undoubtedly there is distinction between gravest misconduct and grave misconduct. Before awarding an order of dismissal it shall be mandatory that dismissal order should be made only when there are gravest acts of misconduct, since it impinges upon the pensionary rights of the delinquent after putting long length of service. As stated the first part relates to gravest acts of misconduct. Under General Clauses Act singular includes plural, "act"
includes acts. The contention that there must be plurality of acts of misconduct to award dismissal is fastidious. The word "acts" would include singular "act" as well. It is not the repetition of the acts complained of but its quality, insidious effect and gravity of situation that LPA No. 40 of 2012 (O&M) 7 ensues from the offending 'act'. The colour of the gravest act must be gathered from the surrounding or attending circumstances. Take for instance the delinquent who put in 29 years of continuous length of service and had unblemished record; in thirtieth year he commits defalcation of public money or fabricates false records to conceal misappropriation. He only committed once. Does it mean that he should not be inflicted with the punishment of dismissal but be allowed to continue in service for that year to enable him to get his full pension. The answer is obviously no. Therefore, a single act of corruption is sufficient to award an order of dismissal under the rule as gravest act of misconduct." (emphasis added)
9. The aforesaid interpretation has also been adopted in a recent judgment of Hon'ble the Supreme Court in the case of Harjit Singh v. State of Punjab, Punjab, 2007 (4) SLR 645, 645 which was a case of absence from duty. The aforesaid judgment has also been followed by a Division Bench of this Court (of which one of us, M.M. Kumar, J. was a member) in the case of SI Surinder Singh v. State of Punjab, Punjab, 2008 (6) SLR 556.
556
10. Although it is well settled that the order of punishment passed by the competent authorities should not ordinarily be interfered with, as has been held in the case of Union of India v. Parma Nanda, (1989) 2 SCC 177.
Nanda
da, 177 It has been observed that
ordinarily the Courts or the Tribunal has no power to interfere with the punishment awarded by the competent authority in departmental proceedings on the ground of the penalty being LPA No. 40 of 2012 (O&M) 8 excessive or disproportionate to the misconduct proved, provided the punishment is based on evidence and is not arbitrary, malafide or perverse. The aforesaid view has been followed in the case of State of Karnataka v. H. Nagaraj, Nagaraj, (1998) 9 SCC 671.
671 Yet, it is equally settled that such orders can be interfered with if 'Wednesbury' principles are applicable. In a 7-Judge Bench judgment of Hon'ble the Supreme Court in the case of Rameshwar Prasad (VI) v. Union of India, 1 a statement of Wednesbury principle has India, (2006) 2 SCC 1, been made in para 242, which reads thus:-
"242. The Wednesbury [Associated Provincial Picture Houses Ltd. V. Wednesbury Corpn., (1948) 1 KB 223] principle is often misunderstood to mean that any administrative decision which is regarded by the Court to be unreasonable must be struck down. The correct understanding of the Wednesbury principle is that a decision will be said to be unreasonable in the Wednesbury sense if (i) it is based on wholly irrelevant material or wholly irrelevant consideration, (ii) it has ignored a very relevant material which it should have taken into consideration, or (iii) it is so absurd that no sensible person could ever have reached it." (emphasis added)
11. The case of the writ petitioner-respondent would be covered by the second principle because the Punishing Authority has failed to apply its mind to the right of the writ petitioner-
respondent to earn pension as he has rendered more than 27½ years of service. The aforesaid requirement is mandatory as per Rule 16.2(1) of the Rules while passing the order of dismissal. For LPA No. 40 of 2012 (O&M) 9 the aforementioned view we place reliance on the judgments rendered in the cases of Ex. H.C. Hari Krishan v. State of Haryana, Haryana, 2000 (1) SCT 1112 (P&H) Ex-Constable v. State of (P&H and Ram Lal, Ex-
Haryana, Haryana, 1996 (2) SCT 115.
115 Therefore, we find that the learned Single Judge has acted within the parameters of law by modifying the order of dismissal to that of compulsory retirement. Subject to corrections of fact in the order of the learned Single Judge as noticed in this judgment the appeal is liable to be dismissed.
12. As a sequel to the above discussion the instant appeal filed by the appellant State is devoid of merit and does not warrant admission. Accordingly, the same is dismissed.
(M.M. KUMAR)
JUDGE
(AJAY KUMAR
KUMAR MITTAL)
January 20, 2012 JUDGE
PKapoor