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2012 DIGILAW 740 (PNJ)

Ex. Constable Balbir Singh v. State of Punjab

2012-05-22

JASWANT SINGH

body2012
JUDGMENT Mr. Jaswant Singh, J.: - By filing the present appeal, the plaintiff-appellant has prayed for setting aside the impugned judgment and decree dated 15.11.2010 passed by the learned Addl. District Judge, Gurdaspur whereby his appeal filed against the judgment and decree dated 3.11.2008 passed by learned Civil Judge (Jr. Division), Gurdaspur dismissing his suit, has been dismissed. 2. Brief facts of the case are that the plaintiff-appellant filed a suit for declaration to the effect that the impugned order of dismissal dated 2.9.2003 passed by the defendant-respondent No.2 as well as the order dated 4.7.2005 passed by the defendant-respondent No.3 are illegal and unconstitutional in the eyes of law with further prayer that he be reinstated in service. Upon notice, suit was resisted. After hearing both the sides, the suit of the plaintiff-appellant was dismissed. On an appeal having been filed, the same has also been dismissed, hence the present second appeal. 3. After hearing learned counsel for the appellant, this court does not find any merit in the present appeal and the same deserves dismissal. 4. Learned counsel for the appellant argued that both the courts have gravely erred while dismissing the suit of the plaintiff appellant as the impugned order of dismissal passed by the disciplinary authority as well as the order passed by the appellate authority are absolutely wrong, illegal and in violation of the Punjab Police Rules, 1934 (for short “1934 Rules”) 5. On the other hand, learned state counsel vehemently opposed the contention of the appellant. He submitted that the plaintiff-appellant has committed a gravest act of misconduct and thus he has rightly been dismissed from service. 6. A perusal of the paper book reveals that while working as Constable with Government Railway Police, Punjab (for “GRP Punjab”), the plaintiff-appellant was posted at Transit Camp GRP Ambala Cantt and deputed for Train Escort Duty from Ambala Cantt to Pathankot on 24.6.2002. The plaintiff had to report back from Pathankot but he did not come back and as such was treated absent vide DDR No.65 dated 26.6.2002. It transpires that the plaintiff-appellant reported back only on 18.12.2002 i.e after absence of 175 days, 12 hours and 55 minutes, thus the plaintiff-appellant was proceeded departmentally under the Service Rules and was found guilty in a departmental inquiry as he did not join the inquiry proceedings. It transpires that the plaintiff-appellant reported back only on 18.12.2002 i.e after absence of 175 days, 12 hours and 55 minutes, thus the plaintiff-appellant was proceeded departmentally under the Service Rules and was found guilty in a departmental inquiry as he did not join the inquiry proceedings. A show cause notice dated 26.5.2003 was issued for the proposed punishment of dismissal from service. Plaintiff appeared personally but could not satisfy the disciplinary authority and thus he was dismissed from service vide order dated 2.9.2003. An appeal was preferred but the same was also dismissed. 7. There is no dispute that the plaintiff-appellant remained absent for 175 days, 12 hours and 55 minutes. It is clearly proved on record that despite notices (Ex.D1 to D.4), the plaintiff-appellant did not appear before the Inquiry Officer and he was proceeded ex parte. Notice (Ex.D.2) was duly received by the wife of the plaintiff and notice (Ex.D.3) was duly received by the plaintiff himself under his signatures. Inquiry report is produced on record as Ex.D5 and dismissal order is Ex.P1/D.7, which clearly discloses that due to noncompliance of the notices, the competent authority i.e AIG has ordered for ex parte proceedings under the Punjab Police Rules. 8. The contention of the plaintiff-appellant that he remained ill during the period of absence was not substantiated before the Inquiry Officer. Counsel for the plaintiff-appellant has not been able to point out that there is any breach of mandatory provisions of law while conducting the disciplinary proceedings in the present case. The plea of illness is only an after thought. Had there been any iota of truth in the stand of the plaintiff-appellant, he should have produced the medical Certificates issued by the concerned Doctor as per law at the appropriate stage, which has not been done for the reasons best known to him. 9. The learned trial Court has recorded in paragraph 11 of its judgment that as per the dismissal order, the plaintiff-appellant is habitual absentee but still his past record was not taken into consideration while passing the dismissal order and the present dismissal order was passed only on the basis of the present period of absence i.e 175 days, 12 hours and 55 minutes. Both the courts have rightly come to the conclusion that the police force is a disciplinary force and absence of an employee even for a single minute may prove dangerous for the Society because personnel are meant to protect the society from the Criminals. 10. Further contention raised on behalf of the appellant is that while passing an order under Rule 16.2 of 1934 Rules, the competent authority ought to have taken into consideration the length of service rendered by the appellant but the same has not been done in the present case. 11. This argument is wholly untenable in view of the fact that as per the own case of the appellant, he has rendered 13 years, 9 months and 17 days of service with the Punjab Police. It has specifically been recorded in the order of dismissal that the plaintiffappellant is an habitual absentee and this fact has been specifically taken note of by learned trial Court in paragraph 11 of its judgment. The Hon’ble Supreme Court has time and again reiterated that wilful absence from duty by member of a disciplined force is a gravest act of misconduct. Even otherwise, learned counsel for the appellant has failed to substantiate that under which provision of law, on completion of 13 years, 9 months and 17 days of service, a Police Constable is entitled for pension in such circumstances. 12. A further perusal of the impugned judgment as well as order of punishment clearly reveal that the plaintiff-appellant was afforded more than sufficient opportunities to defend his case but he deliberately did not join the inquiry proceedings. 13. Keeping in view the facts and circumstances of the present case, it is apparently clear that it is fully proved case of wilful absence from duty, which amounts to gravest act of misconduct under rule 16.2 of the Punjab Police Rules, 1934. Therefore, the plaintiff-appellant has rightly been dismissed from service by the competent authority. Even otherwise, the law is well settled that the Courts cannot sit over the findings of inquiry officer and disciplinary authority as a court of appeal until and unless it is shown that the findings are perverse, without any evidence or breach of any mandatory provisions of law. 14. No substantial question of law is involved in the present appeal for adjudication under Section 100 CPC. Dismissed. ---------0.B.S.0------------