Punjab-Haryana High Court
Beer Singh vs State Of Haryana And Others on 14 March, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 4782 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 4782 of 2010
Date of Decision : March 14, 2012
Beer Singh, Ex-Constable No. 2392/FBD
.... PETITIONER
Vs.
State of Haryana and others
..... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
* * *
Present : Mr. Ashok Tyagi, Advocate,
for the petitioner.
Mr. Harish Rathee, Sr. DAG, Haryana.
* * *
AUGUSTINE GEORGE MASIH, J.
This petition has been preferred by a police official who has been dismissed from service for absence from duty vide order dated 12.10.2006 (Annexure P-5) passed by the Superintendent of Police, Faridabad. Apart from assailing the order passed by the punishing authority, petitioner has also challenged order dated 24.12.2007 (Annexure P-8) passed by the Inspector General of CWP No. 4782 of 2010 2 Police and order dated 14.02.2009 (Annexure P-10) passed by the Director General of Police, Haryana, dismissing the appeal and revision preferred by him against order dated 12.10.2006. The ground pressed into service is that under Rule 16.2 (1) of the Punjab Police Rules,1934 (hereinafter referred to as 'the Rules, 1934'), as applicable to State of Haryana, absence from duty has not been regarded as gravest act of misconduct and, therefore, punishment of dismissal could not have been imposed upon the petitioner.
Briefly the facts are that the petitioner was appointed as a Constable in Haryana Police on 18.10.2000. He proceeded on three days sanctioned casual leave on 10.12.2005 while he was posted at Police Station Sector 7, Faridabad. He was required to report for duty on 14.12.2005 but did not do so and thus was recorded absent vide DD No. 21 dated 14.12.2005. He remained absent continuously and when nothing was heard from his side, a charge-sheet dated 14.08.2006 was served on him for gross negligence and indiscipline by way of being continuously absent without leave and prior information from 14.12.2005 till date i.e. 14.08.2006. A regular departmental enquiry was held against him in which the petitioner opted not to appear. An ex-parte enquiry was held against him and on the basis of finding of guilt recorded by the Enquiry Officer.
A show cause notice was served on the petitioner. To this show cause notice, petitioner submitted a written explanation wherein he had taken a plea that on 10.12.2005, he was suffering from fever CWP No. 4782 of 2010 3 and continuously remained under its effect for about 10-15 days. Thereafter, he was suffering from jaundice and typhoid, for which he took treatment from local Vaids but his condition continued to deteriorate, because of which, he could not report for duty nor could he inform the department. Petitioner was given a personal hearing by the punishing authority and thereafter, order of punishment was passed against the petitioner on 12.10.2006 by the Superintendent of Police, Faridabad (Annexure P-5). The punishing authority in this order concluded that as per Rule 8.16 of the Punjab Civil Services Rules Vol.I, Part-I, a Government employee, who absents himself from duty without permission of the competent authority, is liable to have his absence treated as absence from duty without leave. As the petitioner neither informed the department nor submitted any application for leave, he was to be treated as absent from duty. The explanation also given by the petitioner and non-informing the department, was found to be not correct and rather contrary to the facts, as vide his leave application dated 10.12.2005, he had submitted that he urgently needed leave because of illness of his wife, which was not the stand now given by the petitioner in his written explanation. Till the date of the passing of the order of dismissal, petitioner had not reported back for duty and had remained absent and in any case, charge-sheet served on the petitioner for the period 10.12.2005 to 14.08.2006, which was eight months absence without leave/permission/intimation of the CWP No. 4782 of 2010 4 competent authority. This was found by the punishing authority to be a gravest act of misconduct and sufficient to award the punishment of dismissal from service. It was also observed that the petitioner does not deserve any leniency.
The appeal preferred against this order was rejected by the Inspector General of Police, Gurgaon Range,Gurgaon vide order dated 24.12.2007 (Annexure P-8) who also afforded an opportunity of hearing to the petitioner on 10.12.2007. Another plea was taken by the petitioner in the appeal and at this time produced a medical certificate issued by the Senior Medical Officer Incharge, Primary Health Centre, Mehrauli,New Delhi, according to which he had taken medical treatment for the disease Anxiety Neurosis with Depression from Primary Health Centre, Mehrauli,New Delhi w.e.f. 10.12.2005 to 17.10.2006 and he was found fit for joining normal duty w.e.f. 18.10.2006. This plea is contrary to the earlier plea that he had been suffering from fever,followed by jaundice and typhoid for which he took medicine from local Vaids.This was not accepted by the Appellate Authority. Revision preferred by the petitioner was also dismissed by the Director General of Police, Haryana,vide order dated 14.02.2009 (Annexure P-10). All these three orders have been assailed by the petitioner through the present writ petition.
Counsel for the petitioner contends that the absence of the petitioner from duty was not intentional but he being forced by his ill health preferred not to report for duty on 14.12.2005. He has referred to the medical certificate issued by the Senior Medical CWP No. 4782 of 2010 5 Officer Incharge, Primary Health Centre, Mehrauli, New Delhi, to contend that he was under medical treatment w.e.f. 10.12.2005 to 17.10.2006. He, on this basis, contends that the ex-parte departmental proceedings held against the petitioner cannot sustain and further, as the petitioner had not absented from duty voluntarily, the impugned order of dismissal from service cannot sustain. His further submission is that as per Rule 16.2 of the Rules, 1934, order of dismissal could not have been passed by the respondents for absence from duty as the same is not regarded as a gravest act of misconduct and there is no other aberration on the part of the petitioner during his service career spanning about six years. In support of this contention, reliance has been placed by the petitioner on a Division Bench judgment of this Court in the case of Dhan Singh vs. State of Haryana and others, 2008 (3) SCT 816. Further, the punishing authority has not taken into consideration the length of service of the petitioner while passing the impugned order which also vitiates this order. Reliance has also been placed on the judgment of this Court in the case of The State of Punjab vs. Parkash Chand, Constable, 1992 (1) SLR 174. On this basis, prayer has been made by the counsel for allowing the writ petition by quashing the impugned orders.
On the other hand, counsel for the respondents contends that Rule 16.2 of the Rules, 1934, provides for award of punishment of dismissal for the gravest acts of misconduct or a cumulative effect CWP No. 4782 of 2010 6 of continued misconduct proving incorrigibility and complete unfitness for police service. Explanation to this Rule is not exhaustive but is only explanatory in nature and the acts mentioned in this explanation, if proved, need no further elaboration and it is not restricted to these misconducts only. This, he contends, on the basis of the word 'inter- alia' used in the body of the explanation. His submission thus, is that absence from duty, if in the opinion of the punishing authority is a gravest act of misconduct, the same would be falling under Rule 16.2 of the Rules, 1934. His further contention is that absence from duty has been held by this Court in various cases to a gravest act of misconduct which would call for punishment of dismissal from service. Reference has been made to the case 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.
I have heard the counsel for the parties and have gone through the records of the case.
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.CWP No. 4782 of 2010 7
"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 CWP No. 4782 of 2010 8 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 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 CWP No. 4782 of 2010 9 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 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 CWP No. 4782 of 2010 10 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 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.
Having settled this issue in the case of the petitioner, there is, as per the charge-sheet issued to him, absence from duty from 14.12.2005 to 14.08.2006 (eight months). However, till the passing of the order of dismissal i.e. 12.10.2006, petitioner had not reported back for duty. He even chose not to join the enquiry proceedings. Even the plea taken by the petitioner of his ill health has been found to be not in consonance with the facts as his leave CWP No. 4782 of 2010 11 application dated 10.12.2005 showed the reason for urgency to be illness of his wife whereas in the departmental proceedings, the explanation put forth by him before the punishing authority, after the conclusion of the enquiry proceedings is about his personal illness is not acceptable. Further, in his explanation before the punishing authority, he had stated that he was suffering from fever for 15 days followed by jaundice and typhoid, for which he had taken treatment from local Vaids. This again is contrary to the medical certificate submitted by him before the Appellate Authority which has been issued by the Senior Medical Officer Incharge, Primary Health Centre, Mehrauli, New Delhi (Annexure P-1) where disease mentioned is Anxiety Neurosis c Depression. It needs to be pointed out here that this medical certificate does not state that he was advised bed rest or he was unable to report for duty. What has been stated therein is that he was advised treatment in the OPD of Primary Health Centre from time to time after proper examination during the period 10.12.2005 to 17.10.2006. It needs to be pointed out here that this medical certificate does not bear any number or date of issue. Thus, it can safely be concluded that this certificate has been procured by the petitioner as an afterthought to create a plea of ill health before the Appellate Authority. Further, there was no hitch for the petitioner to inform the department about his illness. In these circumstances, much suspicion can be raised about the genuineness of this certificate.CWP No. 4782 of 2010 12
In the present era where technology has advanced and the present day modes of communication such as mobiles, fax, internet apart from the time tested modes of telephone, telegrams and letters available, petitioner chose not to contact the department all through his period of absence and this fact itself proves mala-fides on his part which reflects upon his character. He appears not to be a truthful and genuine person who has made an effort to cover the true facts about his absence from duty continuously for such a long period from the disciplinary authority and the Court.
Sole plea, which has been taken in the present writ petition about the effort made by him to inform the department about his absence is that he had sent a registered letter dated 26.12.2005 to the Station House Officer, Police Station Sector 7, Faridabad, which again is a plea not taken before the punishing authority although the receipt of the said letter is denied by the respondents. This goes to show the conduct of the petitioner which cannot be said to be of a person, who is a member of a disciplined uniformed force. Highest discipline is expected from the members of the police force who are charged with the task of maintaining rule of law and order. They cannot be permitted to disobey the rules themselves with impunity as they are required to enforce law and rule of justice which is the harbinger of their duty and responsibility. A police officer cannot absent himself from duty and that too, without informing the authorities except in circumstances, which are beyond the control of an officer. If this test is failed and the police officer remains absent without informing the authorities, it would be an act of gross CWP No. 4782 of 2010 13 carelessness, negligence and irresponsibility which would entail severe punishment.
The absence from duty has been held by this Court to be a gravest act of misconduct in the cases of Ex-Constable Sat Pal (supra) and Rajesh Kumar (supra). Hon'ble Supreme Court also in various judgments has held that absence from duty in a disciplined force would amount to a gravest act of misconduct. Reference in this regard may be made to the judgment of the Supreme Court in the case of State of U.P. vs. Ashok Kumar and another, AIR 1996 SC
736. 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 the punishment of dismissal from service, is fully justified as his conduct does not leave any manner of doubt that he is incorrigible and completely unfit for police service, which requires discipline, commitment, punctuality, honesty and integrity and above all, respect for law. Keeping such police officers in the police department would create indiscipline and encourage others also to indulge in such like misconduct.
The contention of the counsel for the petitioner that the punishing authority has not taken into consideration the length of service of the petitioner and his claim for pension, suffice it to say that the petitioner just had about six years of service with the respondent-department as he had joined service on 18.10.2000 and the order of punishment was passed on 12.10.2006. No pension is admissible under the Rules and keeping in view the complete sequence of events and the petitioner's conduct, it cannot be said CWP No. 4782 of 2010 14 that the impugned order does not fulfil the mandate of Rule 16.2 and is thus, vitiated merely because the authority has not noticed the total period of service put in by the petitioner prior to the date of his dismissal. No prejudice has been caused to the petitioner by non- mention of or non-taking of notice of the total period of service put in by the petitioner by the punishing authority. As such the impugned order is justified and passed in accordance with law.
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
(AUGUSTINE GEORGE MASIH )
March 14, 2012 ` JUDGE
pj
CWP No. 4782 of 2010 15