Punjab-Haryana High Court
Devender Kumar vs State Of Haryana And Ors on 31 January, 2023
CWP No.19707 of 2017 {1}
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
216 CWP No.19707 of 2017
Judgment reserved on 19.01.2023
Pronounced on:31.01.2023
Ex-Warder Devender Kumar ... Petitioner
Vs.
State of Haryana and others ... Respondents
CORAM: HON'BLE MR. JUSTICE SUVIR SEHGAL
Present:- Mr. Vijay Dahiya, Advocate
for the petitioner.
Mr. Sourabh Mohunta, DAG, Haryana.
SUVIR SEHGAL J.
Instant petition has been filed seeking a writ in the nature of
certiorari for quashing impugned order dated 06.09.2016 (Annexure P-6),
whereby, petitioner has been dismissed from service and subsequent orders
dated 05.12.2016 (Annexure P-7) and 09.05.2017 (Annexure P-8), whereby,
appeal and revision preferred by the petitioner, have been dismissed.
In a nutshell, facts leading to filing of the petition are that
petitioner, who was serving as a Warder since September, 2003 was served
with a charge-sheet dated 24.04.2015 (Annexure P-2) on account of
remaining absent from duty from 11.04.2014 to 10.03.2015 i.e, for 334 days,
without getting prior permission from the competent authority. He submitted
reply (Annexure P-3) alongwith a medical certificate, which was found to be
unsatisfactory and inquiry officer was appointed, who came to the
conclusion that charges stood proved and submitted report dated 07.07.2016
(Annexure P-4). A show-cause notice was served upon the petitioner and
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CWP No.19707 of 2017 {2}
after considering his response, by impugned order dated 06.09.2016
(Annexure P-6), Superintendent, Head Quarters, Jail, Panchkula dismissed
the petitioner from service. Statutory appeal and revision preferred by the
petitioner were dismissed, vide impugned orders, Annexures P-7 and P-8.
While making reference to Rules 16.2 of the Punjab Police
Rules, 1934, counsel for the petitioner has contended that the petitioner had
put in 13 years of service, but the disciplinary authority did not advert to the
length of the service rendered by the petitioner and his right to pension,
while imposing punishment. Reliance has also been placed by him upon a
Division Bench judgment of this Court in Dhan Singh Vs. State of
Haryana and others 2008(3) SCT 816. He has urged that the authorities
failed to consider that the petitioner was down with jaundice and typhoid.
According to the counsel, petitioner's absence was neither willful nor
deliberate and he had submitted a medical certificate, which has been
rejected by the authorities due to technicalities. Placing reliance on the
judgment of Hon'ble Supreme Court in Chhel Singh Vs. M.G.B.Gramin
Bank Pali and others (2014) 13 SCC 166, he has argued that the dismissal
on account of absence cannot be sustained.
Countering his argument, State counsel has supported the action
taken by the respondents and has submitted that the petitioner has been
repeatedly absent from duty and his past service and conduct have been
considered before passing the impugned orders.
I have considered the arguments addressed by counsel for the
parties and examined the documents appended with the paper book with
their able assistance.
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CWP No.19707 of 2017 {3}
On a specific query as to whether Punjab Police Rules, 1934 are
applicable, counsel for the petitioner has invited the attention of the Court to
Rule 15 of the Haryana Police (Non Gazetted and Other Ranks) Service
Rules, 2017 (for short "2017 Rules") to submit that in the matters relating to
discipline, penalties and appeal, members of the service are governed by the
Punjab Police Rules, 1934, as amended from time to time. This argument of
counsel has been examined. Members of service governed by 2017 Rules
have been specified in Appendix 'A' to the Rules, but the post of Warder has
not been mention therein, rather post held by the petitioner is governed by
the Punjab Jails Department State Service (Class-III Executive) Rules, 1963
(for short "1963 Rules"). As per Rule 15 of 1963 Rules, matters relating to
discipline etc., of members of service, including Warders, are to be governed
by Punjab Jails Department Executive Staff (Punishment and Appeal) Rules,
1943 and charge-sheet (Annexure P-2) has been issued thereunder.
Therefore, reliance on Punjab Police Rules, 1934 and Division Bench
judgment of this Court is misplaced.
In his reply, Annexure P-3 to the charge-sheet, petitioner has
referred to medical certificates dated 11.04.2014 and 22.07.2014 (Annexure
P-3), respectively to justify his absence. Both the certificates have been
examined. A perusal of second certificate shows that although it was issued
on 22.07.2014, but the medical officer had certified that leave of the
petitioner for 07 months and 19 days, w.e.f. 22.07.2014 to 10.03.2015 is
necessary for his treatment. It is beyond comprehension as to how it was
possible for a medical practitioner to mention with such precision the date
on which the petitioner will get better. The certificate, therefore, is not
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CWP No.19707 of 2017 {4}
beyond the shadow of doubt and has rightly been discarded by the
disciplinary authority. In these circumstances, the judgment of the Apex
Court is of no help to the petitioner.
Record shows that the petitioner is a habitual absentee and has
been punished for remaining absent on numerous occasions. In particular,
reference deserves to be made para 3 of the preliminary submissions of the
written statement filed by the respondents, which is as under:-
"3. That the brief facts of this case are that Ex-Warder
Devender Kumar, Belt No.486 was appointed as Warder in the
year 2003 in Haryana Prison Department on temporary basis.
The work and conduct of the appellant was found un-
satisfactory as he was habitual absentee. As per service record
of the appellant, the details of absent period is illustrated as
under:-
Sr. No. Absent period Total Decision taken of absent
From To days period
1. 06.05.07 01.06.07 27 Absent period treated as
without pay leave
2. 14.06.07 30.06.07 17 Absent period treated as
without pay leave
3. 14.06.08 23.06.08 10 Absent period treated as
without pay leave
4. 18.07.08 11.08.08 25 Absent period treated as
without pay leave
5. 17.05.09 26.05.09 10 Absent period treated as
without pay leave
6. 06.11.10 02.01.11 58 Absent period treated as
without pay leave and
awarded punishment of
"Censure" vide No.4444
dated 09.08.2013.
7. 05.04.12 02.05.12 28 Absent period treated as
without pay leave and
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CWP No.19707 of 2017 {5}
awarded punishment of
"Censure" vide No.4931
dated 10.09.2013
8. 13.08.12 28.02.13 200 Absent period treated as
E.O.L and awarded
punishment of stoppage of
two annual increments
without future vide No.175
dated 13.01.2014
9 11.04.14 10.03.15 334 Dismissed from service
10 08.01.16 02.02.16 26 Decision pending
11 15.05.16 08.06.16 25 ---do---
12. 14.08.16 01.09.16 19 ---do--
Total =769 Days
The chart depicts that the petitioner is given to absenteeism and
despite deterrent action, he has shown incorrigibility. Therefore, the severity
of punishment imposed upon him is justified. This Court, therefore, finds
that there is no reason to interfere with the orders passed by the
departmental authorities.
Finding no merit in the petition, it is hereby dismissed.
(SUVIR SEHGAL)
JUDGE
January 31, 2023
savita
Whether Speaking/Reasoned Yes
Whether Reportable Yes
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