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2010 DIGILAW 132 (PNJ)

Raj Devi v. State Of Himachal Pradesh

2010-01-07

KULDIP SINGH, R.B.MISRA

body2010
Judgment Kuldip Singh, J. 1. Ram Swarup predecessor of the appellants had filed present appeal against judgment dated 18.4.2009 passed in CWP (T) No.2754 of 2008. Ram Swarup died during the pendency of the appeal and his legal representatives were brought on record. 2. The further relevant facts are that disciplinary proceedings were initiated against Ram Swarup who did not file any reply to the charge sheet. The Inquiry Officer conducted the inquiry and submitted his report on 14.7.1994. The disciplinary authority issued show cause notice to Ram Swarup on 3.8.1994 and he filed reply to the show cause notice on 16.8.1994. Thereupon the disciplinary authority imposed penalty of dismissal from service upon Ram Swarup on 3.9.1994. The delinquent filed appeal against the punishment order dated 3.9.1994 which was rejected by the Deputy Inspector General of Police on 18.2.1995. Ram Swarup thereafter filed review-cum-revision petition which was also rejected by the director General of Police on 11.7.1995. Ram Swarup thereafter filed Original Application in the tribunal which was lateron abolished. On abolition of the erstwhile Tribunal, the Original Application was transferred to the High Court and registered as CWP (T) No.2754 of 2008. 3. The case of Ram Swarup delinquent was that he was not keeping good health on account of affliction with schizophrenia and he was proceeded exparte by the Inquiry Officer on 3.6.1994. The Inquiry Officer proceeded with the inquiry in an arbitrary manner by first holding the inquiry exparte and thereafter issued letter of allegations imputing willful absence on the part of delinquent from duty from time to time. He was dismissed from service on 3.9.1994. The dismissal order was challenged in appeal on various grounds, but main ground was that delinquent was unwell on account of schizophrenia. The appeal was dismissed on 18.2.1995 and the revision was dismissed on 11.7.1995. The respondents dealt the case of delinquent presuming him to be in perfect physical and mental health whereas he was stressing all alone that he was suffering from schizophrenia. The delinquent could not defend himself properly during inquiry which was one sided. 4. The learned counsel for the appellants has submitted that learned Single Judge has not properly appreciated the material on record. It has been submitted that the disciplinary authority had a pre-determined mind and had resolved to dismiss delinquent from service. The delinquent could not defend himself properly during inquiry which was one sided. 4. The learned counsel for the appellants has submitted that learned Single Judge has not properly appreciated the material on record. It has been submitted that the disciplinary authority had a pre-determined mind and had resolved to dismiss delinquent from service. The reply to show cause notice submitted by Ram Swarup was not considered by the disciplinary authority. The punishing authority was prejudiced against him. It has been submitted that the learned Single Judge has erred in observing that ample opportunities were granted to delinquent during the inquiry. He remained under treatment at Bhatia hospital, Anandpur Sahib. It has been submitted that the learned Single Judge has erred in not relying upon the medical certificates which were placed on record. The disciplinary authority was biased against delinquent. The inquiry report was not supplied during the inquiry to delinquent. The penalty is harsh and oppressive. The learned counsel for the appellants has thus prayed for setting-aside of the impugned judgment and acceptance of appeal. The learned Advocate General has supported the impugned judgment. 5. We have considered the rival contentions of the learned counsel for the parties. The period of misconduct of delinquent was from 14.12.1992 to 3.2.1994 on various occasions. The inquiry report annexure A-3 indicates that initially delinquent had participated in the inquiry. The statement of witnesses of the prosecution were recorded from 5.3.1994 to 8.6.1994. The delinquent on 25.4.1994 without informing again absented from police line. The delinquent from 25.4.1994 to 25.5.1994 was directed several times to join the inquiry but he failed to participate in the inquiry and on 3.6.1994 he was proceeded exparte. 6. It has been submitted by the learned counsel for the appellants that delinquent was not well and in support of this contention, the learned counsel for the appellants has relied on prescription slip issued by the doctor of Bhatia Hospital to delinquent on 14.12.1992 Annexure 8/a and another prescription slip dated 14.12.1993 Annexure 8/b. The learned counsel for the appellants has also relied on certificate dated 3.10.1994 Annexure 8/c issued by the Regional Hospital, Mandi in favour of delinquent advising the period of absence from duty w. e. f.7.9.1994 to continue. The Inquiry Officer prepared the report on 14.7.1994 and thereafter, show cause notice was issued to the delinquent. The Inquiry Officer prepared the report on 14.7.1994 and thereafter, show cause notice was issued to the delinquent. The reply to show cause was replied by the delinquent on 16.8.1994. In the reply, delinquent had stated that his father about 88 years was ill, when the notice was issued his father was quite serious and was admitted at Bilaspur Hospital. In reply delinquent had nowhere stated that he was suffering from mental ailment nor in the reply he had given reference of prescription slips dated 14.12.1992 and 14.12.1993. These documents were not placed during inquiry. In these circumstances, it is not believable that during or prior to inquiry, delinquent was suffering from mental ailment and his absence from duty was due to mental ailment. The period of misconduct is prior to 3.2.1994, the inquiry was concluded on 14.7.1994. Therefore, the medical certificate dated 3.10.1994 Annexure 8/c is of no help to appellants. The prescription slips dated 14.12.1992 and 14.12.1993 appear to have been procured lateron. 7. The delinquent in the appeal against the punishment order dated 3.9.1994 has not alleged any bias or prejudice against the inquiry officer or the disciplinary authority. He had also not raised any grievance that for want of inquiry report any prejudice was caused to him. 8. In Haryana Financial Corporation and another versus Kailash Chandra Ahuja, (2008) 9 SCC 31, it has been held that failure to supply the report of the Inquiry Officer to the delinquent employee would not ipso facto result in proceedings being declared null and void and order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report has caused prejudice and resulted in miscarriage of justice. This was never the case of the delinquent during inquiry or in the appeal against the punishment order. The grievance of the delinquent raised subsequently against the inquiry report is after thought. The delinquent had failed to point out any procedural irregularity in the inquiry and the punishment order. It has come on record that the delinquent was in the habit of absenting from duty, the orders passed by the disciplinary authority, appellate authority and review-cum-revising authority are speaking orders. 9. The delinquent had failed to point out any procedural irregularity in the inquiry and the punishment order. It has come on record that the delinquent was in the habit of absenting from duty, the orders passed by the disciplinary authority, appellate authority and review-cum-revising authority are speaking orders. 9. In State of Punjab and others versus Sukhwinder Singh (2007) 10 SCC 511, it has been held by the supreme Court that when a policeman repeatedly absents himself from duty, then it can be reasonably concluded that there is incorrigibility in his continued misconduct. The delinquent was member of force and utmost discipline was expected from him. The delinquent without any reason absented from duty on different occasions from 14.12.1992 to 3.2.1994. In these circumstances, it cannot be said that the punishment imposed is harsh. 10. The learned Single Judge has rightly appreciated the material on record. The learned counsel for the appellants has failed to make out a case for interference, resultantly, appeal fails and is accordingly dismissed.