State Of Pb.Etc vs Amarjit Singh on 21 February, 2024

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Punjab-Haryana High Court

State Of Pb.Etc vs Amarjit Singh on 21 February, 2024

                                                     Neutral Citation No:=2024:PHHC:024511




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RSA-4995 of 1999



      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH

                                 RSA-4995 of 1999
                                 Reserved on: 13.02.2024
                                 Pronounced on: 21.02.2024

The State of Punjab and others
                                                            ......Appellants

                    Versus


Ex. Constable Amarjit Singh
                                                            ......Respondent

CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR

Argued by: Mr. Jai Narain, AAG, Punjab,
           for the appellants.

             None for the respondent.

NAMIT KUMAR, J.

1. Instant Regular Second Appeal has been filed by the State

of Punjab against the judgment and decree dated 24.07.1995, passed by

the Court of learned Sub Judge III Class, Jalandhar, whereby suit filed

by the respondent-plaintiff for declaration was decreed as well as

against the judgment and decree dated 04.09.1999, passed by the Court

of learned Additional District Judge, Jalandhar, whereby appeal filed

by the State against the judgment and decree dated 24.07.1995, has

been dismissed.

2. Parties to the lis hereinafter shall be referred to by their

original position in the suit. In nutshell, the facts of the case emanating

from the record are that plaintiff-Amarjit Singh filed a suit for

declaration to the effect that the impugned order No.85-89 dated

27.04.1993, passed by the Comdt. 13th Bn PAF Jalandhar Cantt.

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whereby the plaintiff was dismissed from service and order dated

23.07.1993 passed by D.I.G. of Police (PAP) Jalandhar Cantt.,

dismissing the appeal of the plaintiff are illegal, void, capricious,

arbitrary, unjust, unconstitutional, against the provisions of law &

violative of the principles of natural justice and the plaintiff is entitled

to re-instatement w.e.f. the date of dismissal with all other monetary

benefits attached with the service. It was pleaded that plaintiff joined

as Constable in PAP Jalandhar Cantt. w.e.f. 22.01.1992 and that due to

his illness he had to be away from duty on two occasions and that he

had submitted application for grant of leave on medical grounds. But

the punishing authority-defendant No.3, instead of granting leave

directed to hold ex parte departmental enquiry against the plaintiff,

even without serving notice with regard to the enquiry. The Enquiry

officer recorded evidence without serving any notice to the plaintiff and

held the plaintiff guilty and thereafter, the Comdt. i.e. the punishing

authority passed order of dismissal. The plaintiff further alleged that the

ex parte proceedings could not be initiated against the plaintiff without

serving any notice nor any publication was made for securing the

presence of the plaintiff and that statements of witnesses were recorded

without oath and as such violated Rule 16.2 of PPR. The plaintiff had

produced the medical certificates regarding his illness but were ignored

by defendant no.3. The plaintiff filed an appeal against the impugned

order to the D.I.G. of Police, PAP Jalandhar Cantt. and appellate

authority passed the order dated 23.07.1993, without giving personal

hearing to the plaintiff. The plaintiff further alleged that copy of the

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findings of the Enquiry officer furnished to the plaintiff was dim and

illegible which is against the mandatory provision for not supplying the

fair copy of the enquiry report and all other documents. The impugned

order is also against Article 311(2) of the Constitution of India.

3. Upon notice defendants appeared and filed written

statement raising certain preliminary objections with regard to

maintainability of the suit in the present form and being pre-mature.

Validity and legality of the notice under Section 80 C.P.C. and locus

standi of the plaintiff was also challenged. On merits, the defendants

had admitted that the plaintiff has joined as Constable in P.A.P with

effect from 24.01.1992 and he absented himself wilfully on 22.03.1992

from C.T.C. Kapurthala while he was undergoing basic training and

further alleged that his absence was recorded in Roznamcha vide DDR

No.6 dated 22.03.1992. The plaintiff reported back on 06.05.1992 after

a period of 44 days and 23 hours. Defendants specifically denied any

application by the plaintiff for medical leave. They further alleged that

a notice No.3091/OSI dated 26.03.1992 was sent at his home address

and directed him to join his duty immediately but the plaintiff failed to

report back at his place of posting. He reported back at Battalion on

06.05.1992 after the period of absence for 44 days 23 hours. Due to his

absence, a departmental enquiry was ordered against him and Sh.

Dharam Singh A/C 13th Bn, was appointed as enquiry officer to

conduct departmental enquiry against the plaintiff, vide office order

no.5868-71/ST dated 18.06.1992, which was received by the plaintiff

himself on 05.07.1992. But the plaintiff did not appear before the

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enquiry officer and failed to join the departmental enquiry proceedings.

After that, the enquiry officer got the ex parte order from the Comdt.

13th Bn, on 09.07.1992 and the plaintiff was informed accordingly on

27.07.1992, the plaintiff appeared before the enquiry officer and

enquiry officer served him summery of allegations, list of prosecution

witnesses and list of documents free of cost which was received by the

plaintiff on 27.07.1992. On completion of evidence, a charge sheet was

prepared and was given to the plaintiff after getting his signatures. The

plaintiff had also given in writing that he did not want to produce any

evidence in his defence and the same was available in the enquiry file.

The enquiry officer submitted his findings to the punishing authority.

As a result of departmental enquiry a show cause notice for dismissal

was prepared and sent to the plaintiff at his home address on

13.11.1992 and the same was received by his father Sh. Nasib Singh on

24.11.1992 after getting his signatures, as the plaintiff was not present

at his home. The plaintiff has not submitted his reply in detail and only

gave in writing that he wanted to appear before the punishing authority

before any order. The reply of the plaintiff was considered and found

unsatisfactory. The plaintiff was dismissed from service w.e.f

27.04.1993. The plaintiff further filed an appeal to DIG/PAP against

order dated 27.04.1993. The same was considered and rejected by

DIG/PAP vide order dated 23.07.1993. The defendants further denied

that ex parte proceedings were held against the plaintiff. The plaintiff

reported back immediately after the passing of ex parte orders against

him. Defendants further denied that there is procedure of taking oath

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before recording statement/evidence. The evidence recorded in the case

was according to rules and departmental enquiry was held according to

Punjab Police Rules and the plaintiff was dismissed from service under

Rule 16.2 of the PPR on the ground of willful absence which is grave

mis-conduct in the disciplined force. The defendants further denied that

opportunity of personal hearing by the appellate authority was not

given to the plaintiff and also denied the copy of enquiry report being

dim.

4. Replication was not filed and from the pleadings of the

parties following issues were framed:-

1. Whether order No.85-89 dated 27.04.1993 passed by
the Comdt. 13th En. PAP Jalandhar Cantt. and order
dated 23.07.1993 dismissing the appeal of the
plaintiff is illegal, void etc.? OPP

2. Whether the suit is not maintainable in the present
form ? OPD

3. Whether plaintiff has no locus standi to file the
present suit? OPD

4. Whether notice under Section 80 CPC is legal and
valid? OPD

5. Whether the suit is pre-mature? OPD

6. Relief.

5. Both the parties led their oral as well as documentary

evidence.

6. The trial Court, vide judgment and decree dated

24.07.1995 decreed the suit of the plaintiff. Aggrieved against the

judgment and decree dated 24.07.1995, appellants-State preferred an

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appeal before the lower Appellate Court, which was dismissed vide

judgment and decree dated 04.09.1999.

7. Learned counsel for the appellants contended that the

Courts below have failed to appreciate that absence from duty of a

member of the disciplined force is a gravest act of misconduct and for

long absence of 44 days and 23 hours, respondent-plaintiff was rightly

dismissed from service. He further submitted that the impugned

judgments and decrees passed by the Courts below are cryptic,

erroneous based on conjectures and surmises and non-application of

mind and, therefore, are liable to be set aside. He also submitted that

the regular departmental enquiry was conducted in accordance with law

and after following the principles of natural justice and the respondent

was granted reasonable opportunity of hearing and as such the orders

dated 27.04.1993 and 23.07.1993 passed by the departmental

authorities are wholly legal, justified and sustainable in law. Therefore,

the judgments and decrees of the Courts below are liable to be set

aside.

8. No one has chosen to cause appearance on behalf of the

respondent, despite service.

9. I have heard learned counsel for the appellants and

perused the record.

10. Rule 16.2 of the Punjab Police Rules reads as under: –

“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

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award regard shall be had to the length of service of the
offender and his claim to pension.

[(2) If the conduct of an enrolled police officer leads to his
conviction on a criminal charge and he is sentenced to
imprisonment, he shall be dismissed:

Provided that a punishing authority may, in an exceptional
case involving manifestly extenuating circumstances for
reasons to be recorded and with the prior approval of the
next higher authority impose any punishment other than
that of dismissal:

Provided further that in case the conviction of an enrolled
police officer is set aside in appeal or revision, the officer
empowered to appoint him shall review his case keeping in
view the instructions issued by the Government from time
to time in this behalf.]
(3) When a police officer is convicted judicially and
dismissed, or dismissed as a result of a departmental
enquiry, in consequence of corrupt practices, the
conviction and dismissal and its cause shall be published
in the Police Gazette. In other cases of dismissal when it
is desired to ensure that the officer dismissed shall not be
re-employed elsewhere, a full descriptive roll, with
particulars of the punishments, shall be sent for
publication in the Police Gazette.”

11. After hearing the learned counsel for the appellants-State,

following substantial question of law arises for consideration in this

appeal: –

“Whether the order of dismissal passed by the competent
authority after following due procedure can be interfered
with, when the plaintiff has abstained from duty for 44
days and 23 hours?”

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12. Admittedly, the petitioner joined the police service on

22.01.1992. The order of dismissal was passed on 27.04.1993 though

the plaintiff abstained from duty w.e.f. 22.03.1992 to 06.05.1992.

Therefore, the plaintiff had worked only for two months before he

abstained from duty. With the length of service of only two months, the

plaintiff does not get any right of pension. The absence from duty for

44 days, while he was undergoing basic training without any leave or

information only after rendering two months of service shows the lack

of discipline, which is the first requirement of a disciplined force.

Therefore, the plaintiff is not entitled to pension nor has such length of

service, which affects his right of pension.

13. Hon’ble Supreme Court in State of U.P. and others v.

Ashok Kumar Singh and another, (1996) 1 Supreme Court Cases 302

has held as under: –

“8. We are clearly of the opinion that the High Court has
exceeded its jurisdiction in modifying the punishment
while concurring with the findings of the Tribunal on
facts. The High Court failed to bear in mind that the first
respondent was a police constable and was serving in a
disciplined force demanding strict adherence to the rules
and procedures more than any other department. Having
noticed the fact that the first respondent has absented
himself from duty without leave on several occasions, we
are unable to appreciate the High Court’s observation
that “his absence from duty would not amount to such a
grave charge”. Even otherwise on the facts of this case,
there was no justification for the High Court to interfere
with the punishment holding that “the punishment does
not commensurate with the gravity of the charge”

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especially when the High Court concurred with the
findings of the Tribunal on facts. No case for interference
with the punishment is made out.”

14. In State of Punjab v. Ram Singh Ex. Constable, AIR

1992 SC 2188, the Hon’ble Supreme Court held to the following effect:

“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
Clauses 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 the 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. The answer is
obviously no. Therefore, a single act of corruption is

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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-employment, 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.

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The common link that connects both clauses is “the
gravest act/acts of misconduct”.

9. The next question is whether the single act of heavy
drinking of alcohol by the respondent while on duty is a
gravest misconduct. We have absolutely no doubt that the
respondent, being a gunman having service revolver in his
possession, it is obvious that he was on duty; while on duty
he drunk alcohol heavily and became uncontrollable.
Taking to drink by itself may not be a misconduct. Out of
office hours one may take to drink and remain in the
house. But being on duty in a disciplined service like
police service, the personnel shall maintain discipline and
shall not resort to drink or be in a drunken state while on
duty…….”

15. A Division Bench of this Court in State of Haryana and

others v. Gurdev Singh, 1981(3) SLR 130 observed as under:

“5. ……To our mind, the cases with regard to misconduct
on the part of the police officers while on duty have not to
be interfered with by the Courts lightly unless it is found
that the action has been taken wantonly or arbitrarily.”

16. This Court in RSA-2732 of 1997 – State of Punjab and

others v. Chamkaur Singh – decided on 11.02.2015 has held that act

of absence from duty by a member of disciplined force without

information shows the lack of discipline.

17. In view of the above, I find that both the Courts below

have erred in law in interfering in the order of punishment. The plaintiff

had worked only for less than two months and was, thus, not eligible

for pension. The act of absence from duty for 44 days by a member of a

disciplined force is nothing but gravest act of misconduct. The term

“misconduct” has to be given a wider meaning and any wrongful act or

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any act of delinquency would be “misconduct”, and certainly so, if it is

subversive of discipline. The punishment so awarded is neither harsh

nor disproportionate to the misconduct.

18. Consequently, while answering the substantial question of

law, the present appeal is allowed. The judgment and decree passed by

the Courts below are set aside and the suit filed by the respondent-

plaintiff is dismissed.

19. Pending applications, if any, stand disposed of

accordingly.



                                                   (NAMIT KUMAR)
21.02.2024                                            JUDGE
R.S.

               Whether speaking/reasoned           :     Yes/No

               Whether Reportable                  :     Yes/No




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