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2006 DIGILAW 699 (PNJ)

Satnam Singh Constable v. State of Punjab

2006-02-23

M.M.KUMAR

body2006
JUDGMENT M.M. KUMAR, J. 1. This petition filed under Article 226 of the Constitution prays for issuance of a writ in the nature of certiorari, quashing order dated 13.9.1996 (Annexure P-14) passed by respondent No.3-Senior Superintendent of Police, Jalandhar dismissing the petitioner from the post of Constable on account of his proved absence from duty for a period of 161 days. It has further been prayed that a declaration be given in favour of the petitioner and against the respondents by holding that order dated 13.9.1996 (Annexure P-14) flagrantly violates Rule 16.2 (1) of the Punjab Police Rules, 1934 (for brevity ‘the Rules’). 2. Brief facts of the case would show that it is a second round of litigation by the petitioner as would be evident from the following para. The petitioner was posted as a Constable at Police Lines, Jalandhar. He was detailed to attend the Departmental Inquiry which was pending against him with Inspector Gurbachan Singh, Incharge Police Control Room at Jalandhar on 18.6.1988 vide DDR No.14. However, he did not return to the police lines for many months. On verification of his whereabouts it was found that the petitioner did not appear before the Inquiry Officer since 15.7.1988 and had absented himself. Accordingly, his absence was recorded in the Roznamacha Police Lines, Jalandhar vide DDR No.17 dated 14.10.1988, whereby he was treated as absent from duty without getting the leave sanctioned. He reported back in the Police Lines, Jalandhar as recorded in DDR No.16 dated 23.12.1988. He was charge sheeted for absence from duty for 161 days. The charges of absence from duty without permission were proved. The Inquiry Officer submitted his inquiry report on 27.3.1989 (Annexure P-l) and recorded a conclusion that the petitioner is guilty of charges leveled against him. Thereafter, a show case notice was given to the petitioner. It was pointed out in the notice dated 7.4.1989 (Annexure P-2) that on earlier three occasions he has suffered punishment and his service of three years was forfeited in the year 1987. Similarly his service for four years was forfeited during the year 1988. It was further pointed out that his service of two years had also been forfeited during the year 1988 again. The Senior Superintendent of Police came to a prima facie conclusion while issuing show cause notice to the petitioner that the petitioner was liable to be dismissed from service. It was further pointed out that his service of two years had also been forfeited during the year 1988 again. The Senior Superintendent of Police came to a prima facie conclusion while issuing show cause notice to the petitioner that the petitioner was liable to be dismissed from service. The petitioner filed a reply to the show cause notice on 15.4.1989 (Annexure P-3). However, his reply was found unsatisfactory, which was, accordingly rejected. Respondent No.3-Senior Superintendent of Police in his order dated 27.4.1989 concluded as under: “ I have gone through thoroughly the file, eye witnesses, findings of the enquiry officer and reply of the Constable Satnam Singh No.233. If constable Satnam Singh No.233 fell ill he should have informed the Police Line about his illness and got his treatment from the Govt. Hospital I understand that this constable remained absent wilfully and is not fit for service in the Police Department. This constable joined the department on 23.7.1979 and thus he has already forfeited his 9 years service out of about 10 years of his total service. From it this is also clear that this constable has not given up his bad habits during his entire service period. Therefore, I dismiss Constable Satnam Singh No.233 from Police Department” 3. The order or respondent No.3-Senior Superintendent of Police was challenged in an appeal and the Deputy Inspector General of Police, Jalandhar Rang, Jalandhar upheld the order. 4. The Senior Superintendent of Police also passed an order that his period of absence was to be treated as a period without pay. In that regard, a show cause notice was separately issued to the petitioner by respondent No.3 on 3.7. 1990 (Annexure P-7). The petitioner duly replied the show cause notice dated 30.7.1990 (Annexure P-8). Thereafter order dated 30.7.1990 (Annexure P-9) was passed to the effect that he would not be entitled to any other pay or monetary benefits except the one he has already obtained during the period of absence. Even appeal against the aforementioned order was dismissed by Deputy Inspector General of Police, Jalandhar Range, Jalandhar on 1.10.1990 (Annexure P-11). 5. Thereafter order dated 30.7.1990 (Annexure P-9) was passed to the effect that he would not be entitled to any other pay or monetary benefits except the one he has already obtained during the period of absence. Even appeal against the aforementioned order was dismissed by Deputy Inspector General of Police, Jalandhar Range, Jalandhar on 1.10.1990 (Annexure P-11). 5. The petitioner filed Civil Writ Petition No.131 of 1992 challenging the order of dismissal as upheld by the Appellate Authority on 1.10.1990 (Annexure P-11) A Division Bench of this Court on 11.5.1992 quashed the order dated 1.10.1990 (Annexure P- 11) on the ground that no findings has been recorded that the misconduct attributed to the petitioner amounted to the gravest act of misconduct which required his dismissal from service. The aforementioned observations were made by keeping in view the requirements of Rule 16.2 of the Rules and as per the judgment of a Division Bench of this Court in the case of State of Punjab v. Parkash Chand, 1992(1) SLR, 174. A Division Bench of this Court remanded the case to respondent No.3-Senior Superintendent of Police directing him to pass a fresh order keeping in view the law laid down in Parkash Chand’s case (supra). The petitioner was reinstated in service in May 1992 and he joined as Constable in the Police Lines, Jalandhar. 6. In purported compliance to the directions issued by a Division Bench of this Court respondent No.3-Senior Superintendent of Police again issued a show cause notice dated 20.3.1996 (Annexure P-13). Respondent No.3-Senior Superintendent of Police, Jalandhar, again considered the whole case and passed an order of dismissal on 13.9.1996 (Annexure P-14). The operative part of the aforementioned order reads as under: “3. I have perused the entire documents of departmental enquiry file including all the evidence on the file, FIR, charge-sheet and day-to-day hearings conducted by the enquiry officer. After perusing the enquiry report, I issued show-cause notice to the constable why he be not dismissed from police service and period of absence be considered as ‘without duty’. In addition to this, he will not be entitled for any pay and other allowances for the period of his absence. He himself collected the copy of show-cause notice and enquiry report on 17.4.96, he was given opportunity of hearing before passing the order of sentence. He was given 10 days period to file reply. In addition to this, he will not be entitled for any pay and other allowances for the period of his absence. He himself collected the copy of show-cause notice and enquiry report on 17.4.96, he was given opportunity of hearing before passing the order of sentence. He was given 10 days period to file reply. He was also advised that if his reply is not received within the stipulated period, then it will be presumed that he has nothing to say in his defence and he accepts the charges levelled against him. 4. So keeping in view these facts, I do not consider any change in the sentence proposed in the show-cause notice issued to constable Satnam Singh, No.233/Jallandhar, at present 1404/Jalandhar. So I pass the order of dismissal of Constable Satnam Singh No.1404/Ja1andhar, on 13.9.1996. His absence for a period of 161 days be considered as without duty. He will not be entitled for any pay and allowances for the said period or other benefits. Concerned clerk will be liable to handover the copy of this letter. This order be registered. 6. The stand taken by the respondents in the written statement is that the petitioner was reinstated in service vide order dated 19.10.1992 and a fresh show cause notice was issued to him on 20.3 .1996, which was followed by reminders dated 16.5.1996,29.5.1996 and 8.6.1996. He was advised to come for personal hearing. He neither sent any reply to the show cause notice nor did he appear personally before respondent No.3, as a consequence of which the respondents passed order dated 13.9.1996 (Annexure P-14). It has further been stated that the petitioner is a habitual absentee and has suffered punishment on earlier three occasions. His service record is stated to be consistently bad and he was completely unfit for police service. 7. Mr.Sanjay Majithia, learned counsel for the petitioner has argued that order dated 13.9.1996 (Annexure P-14) suffers from same legal infirmity which vitiated the order dated 30.7.1990 (Annexure P-9) and 1.1O.1990 (Annexure P-11). According to the learned counsel, again respondent No.3 has failed to take into consideration the provisions of Rule 16.2 of the Rules and the length of service of the petitioner, which may adversely affect his claim of pension. According to the learned counsel, again respondent No.3 has failed to take into consideration the provisions of Rule 16.2 of the Rules and the length of service of the petitioner, which may adversely affect his claim of pension. Learned counsel has maintained that an order of dismissal in respect of a police constable can be passed only when an officer has committed a gravest act of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for the police service. In support of his submission, learned counsel has placed reliance on a judgment of this Court in the case of Mahipat. Ex. Constable v. State of Haryana and others, 1994 (4) SLR, 311 and Ex.Constable Satnam Singh v. State of Punjab and others, 1996(3) RSJ 845. He has argued that in the absence of any finding recorded by respondent No.3 to the effect that the petitioner has committed a gravest act of misconduct or as the cumulative effect of various acts of misconduct proving incorrigibility and unfitness for the police force, he could not be dismissed from service because it would be violation of Rule 16.2 of the Rules. 8. Shushant Maini, learned State counsel, has argued that the absence of 161 days from duty by the petitioner is itself a gravest act of misconduct and it would attract infliction of punishment of dismissal. According to the learned counsel, there is no necessity to record a finding that there is gravest act of misconduct as long as it is evident from the record. Learned counsel has maintained that order Annexure P -14 is consistent with the record and cannot be open to the criticism that it did not conform to the requirements of Rule 16.2 of the Rules because requirements of the Rules are fulfilled. He has further submitted that a judgment of a Division Bench in Parkash Chand’s case (Supra) has been substantially followed in the subsequent judgment of the Supreme Court in the State of Haryana v. Jagdish Chander, 1995(2) SCT, 427. He has also placed reliance on para 23 of the judgment of the Full Bench of this Court in the case of Sher Singh v. State of Haryana, 1994(3) SCT 1. 9. He has also placed reliance on para 23 of the judgment of the Full Bench of this Court in the case of Sher Singh v. State of Haryana, 1994(3) SCT 1. 9. After hearing learned counsel for the parties I find that it is admitted position that Rule 16.2 of the Rules is applicable to the case of the petitioner which deals with dismissal and the same read as under: 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 the length of service of the offender and his claim to pension (2)xxxxxx xxx (3)xxx. xxxxxx 10. The aforementioned rules fell for the consideration of the Supreme Court in the case of State of Punjab v. Ram Singh Ex Constable, 1992(4) SCC, 54. Their Lordships have interpreted the rule in paras 7 and 8 of the judgment which read 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 Clause 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 ensues from the offending ‘act’. The colour of the gravest act must be gathered from 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. 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. 8. The second part of the rule connotes the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and that the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The contention that both parts must be read together appears to us to be illogical. Second part is referable to a misconduct minor in character which does not by itself warrant an order of dismissal but due to continued acts of misconduct would have insidious cumulative effect on service morale and may be a ground to take lenient view of giving an opportunity to reform. Despite giving such opportunities if the delinquent officer proved to be incorrigible and found completely unfit to remain in service then to maintain discipline in the service, instead of dismissing the delinquent officer, a lesser punishment of compulsory retirement or demotion to a lower grade or rank or removal from service without affecting his future chances of re-emploment, if any, may meet the ends of justice. Take for instance the delinquent officer who is habitually absent from duty when required. Despite giving an opportunity to reform himself he continues to remain absent from duty off and on. He proved himself to be incorrigible and thereby unfit to continue in service. Therefore, taking into account his long length of service and his claim for pension he may be compulsorily retired from service so as to enable him to earn proportionate pension. The second part of the rule operates in that area. It may also be made clear that the very order of dismissal from service for gravest misconduct may entail forfeiture of all pensionary benefits. Therefore, the word ‘or’ cannot be read as “and”. It must be disjunctive and independent. The common link that connects both clauses is “the gravest act/acts of misconduct”. 11. It may also be made clear that the very order of dismissal from service for gravest misconduct may entail forfeiture of all pensionary benefits. Therefore, the word ‘or’ cannot be read as “and”. It must be disjunctive and independent. The common link that connects both clauses is “the gravest act/acts of misconduct”. 11. A perusal of the para 8 of the judgment would show that the punishment of dismissal could be awarded on account of cumulative effect of continued misconduct proving incorrigibility and complete unfitness for the police service. It has come on record of the present case that on earlier three occasions the petitioner has absented himself and his three years service was forfeited in the year 1987. It has further been shown from the record that in the year 1988 he lost four and 2 years of service on account of absence from duty. The respondents have taken a categorical stand in para 7 that the petitioner remained willfully absent from duty for 161 days and he has been a habitual absentee. The averments made in para 7 show that he has been punished on a number of times for absence from duty. The details of punishment regarding absent from duty have been given as under: (i) His 3 years approved service was forfeited vide order No.43454-58 dated 14.4.87 for the petitioner remained absent from 97 days 12 hours. (ii) Four years approved service of the petitioner was forfeited vide order No.21006-11 dated 4.3.88 for the remained absent from duty for 48 days. (iii) Again two years approved service of the petitioner was forfeited vide order 211066-70 dated 15.12.88 for the remained absent from duty for 9 months and a day.” 12. It, thus, becomes evident that the cumulative effect of continued misconduct mjght have resulted into dismissal of the petitioner because he has been found unfit for disciplinary force like police. 13. However, no finding has been recorded in the impugned order dated 3.9.1996 (Annexure P.14) that the petitioner has continued to mis-conduct himself proving incorrigibility and complete unfitness for police service. The order also does not reflect that respondent no.3-SSP was conscious of the rule and has taken into account the length of service of the delinquent official nor his claim for pension has been kept in view. The order also does not reflect that respondent no.3-SSP was conscious of the rule and has taken into account the length of service of the delinquent official nor his claim for pension has been kept in view. The afore-mentioned requirement has to be fulfilled in view of the Division Bench judgement of this Court in the case of Parkash Chand (supra) . When the earlier CWP No.131 of 1992 came up for consideration of this Court specific and express order was passed to the effect that neither the S.S.P. - the punishing authority (Respondent No.3) nor D.I.G. Police - appellate authority (Respondent No.2) had recorded that the mis-conduct attributed to the petitioner amounted to gravest act of misconduct which necessitated his dismissal from service. Accordingly a direction was issued to reconsider the decision by respondent no.3-S.S.P. to take a fresh decision keeping in view the law laid down in Parkash Chand’s case (supra). It is appropriate to mention that in Parkash Chand’s case (supra) a Division Bench of this Court has considered the judgements of this Court in the cases of Gurdev Sina:h v. State of Haryana 1976(2) SLR 442 and Baldev Singh v. State of Punjab 1985(3) SLR 657 and has concluded as under: “10. Keeping in view what has been said above, the argument of the counsel for the respondent does appear to be unexceptionable. It is essential for the Punishing Authority to apply its mind and to record a specific finding as to whether the conduct of the delinquent official which has been complained of is of such a grave nature that it must lead inflexibly to his dismissal. As already indicated above. reliance has also been placed by the respondent on Gurdev Singh’s case (supra). in which the respective scope of rules 16.2 and 16.24 (1) were discussed. It was held by the learned single Judge that it was incumbent upon the Punishing Authority to record a finding that the misconduct attributed to the delinquent official was the gravest act of misconduct and in the absence of such a finding the order could not be sustained. In Baldev Singh Ex.-Constable’s case (supra) which overruled Gurdev Singh’s case, aforesaid, interpretation of rule 16.2 was not involved but the aforesaid decision was rendered on the basis of the interpretation put on rule 16.24 (1). In Baldev Singh Ex.-Constable’s case (supra) which overruled Gurdev Singh’s case, aforesaid, interpretation of rule 16.2 was not involved but the aforesaid decision was rendered on the basis of the interpretation put on rule 16.24 (1). We are, therefore, of the view that Gurdev Singh’s case (supra) in so far as it deals with interpretation of rule 16.2, still holds the field. We have gone through the matter independently as well, and find that the aforesaid decision lays down the correct law and needs to be reiterated to the above extent. The order impugned herein does not indicate that the punishing authority was alive to the requirement of rule 16.2 and it has not recorded any finding that the act of the respondent amounted to the gravest act of misconduct which required his dismissal from service. The order is. therefore. unsustainable and the Judgment of the lower Appellate Court is correct to that extent.” (emphasis added) 14. In view of the above, I find considerable force in the argument raised by the learned counsel for the petitioner and accordingly I am of the view that the writ petition deserves to be allowed. 15. The argument of the learned State counsel that the Division Bench judgement of this Court in Parkash Chand’s case (supra) has been reversed is absolutely mis-conceived. In State of Punjab v. Parkash Chand 1997(11) SCC 523, the Supreme Court has held that even in the absence of finding of gravest act of mis-conduct so as to call for imposition of penalty of dismissal from service it was to remain open to the disciplinary authority to impose upon the delinquent official a lessor penalty by keeping in view the nature of mis-conduct that has been found established. The afore-mentioned principle has been added to the view taken by the Division Bench of this Court in Parkash Chand’s case (supra). The Division Bench judgement of this Court has been upheld in terms with the addition of granting liberty to the punishing authority to impose any lessor punishment then dismissal. Therefore, there is no substance in the argument raised on behalf of the State. 16. The Division Bench judgement of this Court has been upheld in terms with the addition of granting liberty to the punishing authority to impose any lessor punishment then dismissal. Therefore, there is no substance in the argument raised on behalf of the State. 16. The other judgement of the Supreme Court in the case of Jagdish Chand (supra) has no application to the facts of the present case nor the judgement of the Full Bench of this Court in the case of Sher Singh..(supra) is attracted to the facts of this case because those cases deal with the discharge of a constable under rule 16(2.1) of the Rules. 17. In view of the above, writ petition is allowed. The impugned order dated 13.9.1996 (Annexure P .14) is kept in abeyance with a direction to respondent No.3-S.S.P. to pass a fresh order in accordance with law within a period of three months from the date of receipt of certified copy of this order. The petitioner is not to be reinstated in service. The afore- mentioned course has been adopted because the petitioner has already suffered three punishments which has resulted in the forfeiture of nine years of his service and respondent no.3 S.S.P. granted one more opportunity to act in accordance with law by passing an appropriate order. If respondent No.3- S.S.P. fails to pass an appropriate order within the specified period of three months then the impugned order dated 13.9.1996 (Annexure P-14) shall be deemed to be quashed and the petitioner shall be reinstated in service with all consequential benefits.