Punjab-Haryana High Court
State Of Punjab vs Constable Chander Parkash on 13 March, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:036099
RSA-1866-1995 2024:PHHC:036099 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(201) RSA-1866-1995
Date of Decision : March 13, 2024
State of Punjab .. Appellant
Versus
Constable Chander Parkash .. Respondent
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Rohit Ahuja, Deputy Advocate General, Punjab,
for the appellant-State.
Mr. Madan Sandhu, Advocate, for the respondent.
HARSIMRAN SINGH SETHI J. (ORAL)
1. In the present appeal, the challenge is to the judgment and decree of the Courts below. The trial Court has allowed the suit filed by the appellant setting aside the order dismissing the respondent-plaintiff from service dated 29.11.1988 by holding that mere absence from service does not amount to grievous act of misconduct hence, the order dismissing the respondent-plaintiff from service on the ground of absence cannot be sustained.
2. The appeal filed against the said judgment and decree has also been dismissed by the lower Appellate Court on 13.02.1995.
3. Learned counsel for the appellant-State argues that the respondent, who was working on the post of Constable in Police, absented himself without there being any justifiable reason and on account of said 1 of 6 ::: Downloaded on - 20-03-2024 20:31:31 ::: Neutral Citation No:=2024:PHHC:036099 RSA-1866-1995 2024:PHHC:036099 2 absence from duty, the disciplinary proceedings were initiated against the respondent-plaintiff and after proving the allegations of unauthorized absence from duty, the punishment from dismissal of service was imposed and though the trial Court held that the disciplinary proceedings were validly held but the relief has been granted to the respondent-plaintiff only on the ground that the absence from duty cannot be treated as grievous act of misconduct so as to impose the punishment of dismissal. Learned counsel for the appellant-State submits that the said view of the trial Court, which has been affirmed by the lower Appellate Court is contrary to the settled principle of law settled by the Hon'ble Supreme Court of India in Civil Appeal No. 9997 of 1995 titled as State of U.P. vs. Ashok Kumar Singh, decided on 10.11.1995.
4. Learned counsel for the respondent-plaintiff submits that even if it is assumed for the sake of arguments that the enquiry proceedings against the respondent-plaintiff were held in accordance with law but mere absence from duty cannot be treated as grievous act of misconduct and further that once the period of absence have already been regularized, the same will amount to wipe out the absence period itself hence, the judgment and decrees of the Courts below are perfectly valid and legal and liable to be upheld.
5. I have heard learned counsel for the parties and have gone through the record with their able assistance.
6. The first question which arise for consideration is whether, a police officer, who is the member of the disciplined force, if remains absent from duty without any valid justification, the same would amount to the grievous act of misconduct so as to invite the punishment of dismissal or not. The said issue has already been decided by the Hon'ble Supreme Court 2 of 6 ::: Downloaded on - 20-03-2024 20:31:32 ::: Neutral Citation No:=2024:PHHC:036099 RSA-1866-1995 2024:PHHC:036099 3 of India in Ashok Kumar Singh's case (supra). The Hon'ble Supreme Court of India has held that in case any member of the disciplined force remains absent from duty without leave, the same amounts to the grievous act of misconduct. The relevant paragraph 8 of the said judgment is 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 notices the fact that the first respondent has absented himself from duty without level 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' especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out."
7. Once the absence from duty qua the respondent-plaintiff amounts to grievous act of misconduct, the findings recorded by the Courts below are perverse being against the settled principle of law settled by the Hon'ble Supreme Court of India in Ashok Kumar Singh's case (supra) and are liable to be set aside and accordingly set aside.
8. The further argument of the learned counsel for the respondent- plaintiff that once the period of absence from service has already been regularized as leave without pay, the act of absence stands washed away, cannot be accepted.
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9. Once, an order dismissing the respondent-plaintiff from service is being passed, the period for which the respondent-plaintiff remained absent, has to be regularized in a manner required. In order to define as to how the absence period will be treated, the same has been treated as leave without pay, the same does not mean to wash away the absence of the respondent-plaintiff from service. This issue has also been settled by the Hon'ble Supreme Court of India in Civil Appeal No.4969 of 2008 titled as State of Punjab vs. Dr. P.L. Singla, decided on 31.07.2008 wherein, it has been held that where, while passing the order of punishment, the absence period has been decided to be treated in a particular manner, the same does not mean the condoning of the allegation of the charge alleged, which has already been proved. The relevant paragraph of the said judgment is as under:-
"10. Where the employee who is unauthorizedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence. Where the punishment is either dismissal or removal, it may not be necessary to pass any consequential orders relating to the period of unauthorized absence (unless the rules require otherwise). Where the punishment awarded for the unauthorized absence, does not result in severance of employment and the employee continues in service, it will be necessary to pass some consequential order as to how the 4 of 6 ::: Downloaded on - 20-03-2024 20:31:32 ::: Neutral Citation No:=2024:PHHC:036099 RSA-1866-1995 2024:PHHC:036099 5 period of absence should be accounted for and dealt with in the service record. If the unauthorized absence remains unaccounted, it will result in break in service, thereby affecting the seniority, pension, pay etc., of the employee. Any consequential order directing how the period of absence should be accounted, is an accounting and administrative procedure, which does not affect or supersede the order imposing punishment.
11. In this case, the punishment was imposed by order dated 16.9.1999/11.10.1999. That order was not cancelled, revoked or withdrawn. The subsequent order dated 25.1.2001 merely accorded extraordinary leave in regard to the period of absence, but did not condone the unauthorized absence nor wipe out the punishment already imposed. The said order was only consequential to the imposition of punishment. Its effect was to maintain continuity of service of the respondent, but deny salary for the period of absence and not to count the period of absence as qualifying service for the purposes of pension. Its effect is certainly not to exonerate the respondent from the charge of unauthorised absence nor to wipe out the punishment. If the intention was to revoke the punishment, the order dated 25.1.2001 would have clearly stated so. But it did not.
12. The assumption by the courts below that when an order is passed according extra-ordinary leave for the period of absence, it will have the effect of effacing or erasing the punishment already imposed, is therefore incorrect and is a serious error of law. When the trial court and the appellate court had committed this serious error, the High Court ought to have formulated an appropriate question of law and allowed the second appeal. Instead, it chose to dismiss the second appeal putting its seal of approval on a wrong interpretation of law leading to serious repercussions in regard to discipline and administration. The judgment of the High Court confirming the orders of the courts below, therefore calls for interference."
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10. Keeping in view the above, the judgment and decrees of the Courts below are perverse to the settled principle of law as the evidence which has already come on record, has not been appreciated in a manner required for.
11. The present writ petition is allowed. The judgment and decrees of the Courts below are set aside. Consequently the suit filed by the respondent-plaintiff is dismissed.
March 13, 2024 (HARSIMRAN SINGH SETHI)
harsha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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