Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 134 (PNJ)

Ramphool Yadav Ex. Constable v. State Of Haryana

2004-02-05

ASHUTOSH MOHUNTA

body2004
Judgment Ashutosh Mohunta, J. 1. Challenge in this appeal is to the judgments and decrees dated 19.10.1996 and 30.7.1998 passed by the Civil Judge (Junior Division), Gurgaon, and Additional District Judge, Gurgaon, respectively, whereby the suit filed by the appellant against his dismissal from service has been dismissed. 2. The appellant, who joined the Police Department as a Constable, on 3.7.1976, was charge-sheeted on 28.5.1993 on the ground that he had consumed liquor while he was on duty and also that he remained absent from duty on 2.10.1992. An inquiry was held and, ultimately, he was dismissed from service vide order dated 13.9.1993 passed by the Superintendent of Police, Rewari (defendant-respondent No. 3). His appeal against his dismissal was declined by the Deputy Inspector General of Police, Gurgaon (respondent No. 2) vide order dated 21.4.1994. The appellant filed by Civil suit wherein challenge to the orders dated 13.9.1993 passed by the Superintendent of Police, Rewari (respondent No. 3), and dated 21.4.1994 passed by the Deputy Inspector General of Police, Gurgaon (respondent No. 3), was made. The suit was contested by the State of Haryana. On the pleadings of the parties, the Civil Judge (Junior Division), Gurgaon, framed a number of issues. However, the contentious issues is to the following effect:- Whether the order dated 13.2.1993 whereby services of plaintiff were dismissed and subsequent order dated 21.4.1994 whereby the plaintiffs appeal was dismissed, are null, void and not binding on the plaintiff? The Civil Judge (Junior Division), Gurgaon found that both the orders dated 13.2.1993 as well as the order dated 21.4.1994 were legal and the issue was decided against the plaintiff-appellant and all other issues, i.e., issue Nos. 2 to 6 were decided against the defendant-respondents and in favour of the plaintiff-appellant. In view of the findings on issue No. 1, the suit filed by the plaintiff-appellant was dismissed vide judgment and decree dated 19.10.1996 passed by the trial Court. In appeal filed by the plaintiff, it was held by the Additional District Judge, Gurgaon, that the charge of consumption of liquor by the appellant while on duty was not proved and the findings of the trial Court were set aside in this respect. In appeal filed by the plaintiff, it was held by the Additional District Judge, Gurgaon, that the charge of consumption of liquor by the appellant while on duty was not proved and the findings of the trial Court were set aside in this respect. However, with regard to the absence from duty for one day, it was held by the lower appellate Court that as the explanation given by the plaintiff was not accepted by the authorities, therefore, the charge stood proved. Ultimately, the appeal filed by the plaintiff was dismissed by the Additional District Judge, Gurgaon, vide judgment and decree dated 30.7.1998. Now the plaintiff has filed the present appeal to challenge the judgments and decrees passed by both the Courts below. 3. I have heard the learned counsel for the parties and have gone through the evidence adduced on record. 4. The substantial questions of law that arise for determination by this Court are to the following effect:- 1. Whether the punishment of dismissal from service can be maintained even when it has been found that the charge levelled against the appellant with regard to consumption of liquor while on duty is not proved on the basis of evidence? And 2. Whether an employee can be punished with dismissal from service on the ground that he was found absent from duty for one day? 5. It has been held by the Additional District Judge, Gurgaon, in his judgment dated 30.7.1998 that the "trial Court has failed to take notice that there is no evidence in support of the charges levelled against the plaintiff about consumption of liquor." It has further been held by the lower appellate Court that the "finding of the learned trial court that in such like cases the civil court cannot interfere is altogether against law and facts." When it has been held by the lower appellate Court that the charge with regard to consumption of liquor by the appellant is not proved and that "it is a case of no evidence", then I am of the considered opinion that the major punishment of dismissal from service cannot be awarded to him. The authorities have also failed to adduce any evidence on record that the appellant was absent from duty on 2.10.1992. The authorities have also failed to adduce any evidence on record that the appellant was absent from duty on 2.10.1992. With regard to the absence from duty, the appellant had taKgn the plea that owing to the illness of his son, he was absent from duty. No evidence in rebuttal has been adduced by the authorities. It is not the case of the authorities that the appellant was a habitual absentee. Mere absence from duty for one day is not such a grave misconduct on the part of the appellant for which he could be punished with dismissal from service. The quantum of punishment should always commensurate with the misconduct of the delinquent. In the case reported as The State of Punjab v. Parkash Chand, Constable, 1992(1) Services Law Reporter 174, it has been held by a Division Bench of this Court that absence without leave does not amount to gravest act of misconduct. In that case it was held as under:- "This Court has in a number of cases gone into the matter in order to find as to what would really constitute a gravest act of misconduct, A number of cases have been cited before us but we have chosen to pick up only one which deals with the question of absence without leave. In Darshan Singh s case (supra), the learned Single Judge has held that absence without leave for almost 13 months would not in the circumstances of that case amount to the gravest misconduct." In the present case the absence from duty is only for one day. Even for that absence, the appellant had given a plausible explanation that he had remained absent owing to the illness of his son. In order to rebut the explanation submitted by the appellant, it was incumbent upon the authorities to have delved deep into the matter to know the truth. No evidence in rebuttal has been adduced by the authorities in order to set aside the explanation submitted by the appellant. Anyhow, it is settled law that the punishment must always commensurate with the gravity of the misconduct of the delinquent. 6 Consequently, I allow the appeal and set aside the judgments and decrees passed by both the Courts below. The impugned orders dated 13.9.1993 passed by the Punishing Authority, and dated 21.4.1994 passed by the Appellate Authority: are set aside. Anyhow, it is settled law that the punishment must always commensurate with the gravity of the misconduct of the delinquent. 6 Consequently, I allow the appeal and set aside the judgments and decrees passed by both the Courts below. The impugned orders dated 13.9.1993 passed by the Punishing Authority, and dated 21.4.1994 passed by the Appellate Authority: are set aside. The appellant is reinstated into service with continuity thereof. It is, however, ordered that he will be paid one third of the back wages.