Punjab-Haryana High Court
Ram Kumar vs State Of Haryana on 22 April, 2024
Author: Suvir Sehgal
Bench: Suvir Sehgal
Neutral Citation No:=2024:PHHC:055169
RSA-3068-1994 -1- 2024:PHHC:055169
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
(218)
RSA-3068-1994
Date of decision:- 22.04.2024
Ram Kumar ... Appellant
Versus
State of Haryana and others ... Respondents
CORAM: HON'BLE MR. JUSTICE SUVIR SEHGAL
Present:- Mr. Ajay Kumar Ghangas, Advocate for the appellant.
Mr. Sharad Aggarwal, DAG, Haryana.
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SUVIR SEHGAL, J. (ORAL)
1. Plaintiff-appellant is in second appeal before this Court
challenging the judgment and decree passed by the First Appellate Court.
2. Pleaded case of plaintiff-appellant is that he joined the service as
a Constable on 04.07.1976. He was served with a charge-sheet on
04.02.1987 on the allegation of wilful absence from duty and after holding
an enquiry, by order dated 17.11.1987, he was dismissed from service.
Appeal filed by him was dismissed by the defendants by order dated
22.04.1988. Challenging both the orders, he filed a suit for declaration,
which upon notice has been contested by the defendants-respondents by
filing a written statement. The stand taken by the defendants is that plaintiff
remained absent from duty from 01.05.1986 to 05.08.1986 and again from
27.10.1986 to 16.11.1987. Disciplinary proceedings were initiated against
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him in accordance with the rules and he was afforded a full opportunity to
participate in the proceedings. On the basis of the enquiry report, penal
action was taken against him. Plaintiff filed a replication re-asserting his
claim. Issues were framed and after the parties led evidence, by judgment
dated 27.08.1992, Trial Court decreed the suit. Appeal filed by the
defendants was accepted by judgment dated 24.08.1994 and the decree
passed by the Trial Court was set aside. Plaintiff-appellant is before this
Court in the above background.
3. Counsel for the appellant has argued that the defendants have
failed to comply with the Rule 16.2 of the Punjab Police Rules, 1934 (for
short "the Rules") as they have not considered the length of service
rendered by the appellant and his claim for pension. He submits that the
appellant has unfortunately expired during the pendency of the petition and
his case deserves to be re-considered as he had eleven years service to his
credit and an order of compulsorily retirement, instead of dismissal
deserves to be passed.
4. On the other hand, State counsel has opposed the appeal and has
supported the judgment passed by the First Appellate Court. He submits
that the dismissal order was passed keeping in view the blemished service
record of the appellant and he was found to be incorrigible and unfit for
police service.
5. I have heard counsel for the parties and considered their
respective submissions, besides examining the Trial Court record with their
able assistance.
6. Controversy involves interpretation of Rule 16.2 (1) of the Rules
(as applicable to State of Haryana) and it is reproduced as under:-
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"16.2 Dismissal: (1) Dismissal shall be awarded only for the
gravest acts of misconduct or as the cumulative effect or
continued misconduct proving incorrigibility and complete
unfitness for police service. In making such an award regard
shall be had to the length of service of the offender and his claim
to pension.
Explanation - For the purpose of sub-rule(1), the following shall,
inter alia, be regarded as gravest acts of misconduct in respect of
police officer, facing disciplinary action:
(i) Indulging in spying or smuggling activities;
(ii) disrupting the means of transport or of communication;
(iii) damaging public property;
(iv) causing indiscipline amongst fellow policemen.
(v) promoting feeling of enmity or hatred between different
class of citizens of India on grounds of religion, race, caste,
community or language;
(vi) going on strike or mass casual leave or resorting to mass
absentions;
(vii) spreading disaffection against the Government; and
(viii) causing riots and the life."
7. This rule came up for interpretation before a Division Bench of
this Court in Narinder Kumar Versus State of Haryana and others,
1995(4) S.C.T. 222, wherein it was held as under:-
"6. This rule can appropriately be divided into two parts.
The first part consists of the cases in which the punishment of
dismissal can be awarded. Such punishment can be awarded
where the employee is found guilty of the gravest acts of
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misconduct or where the cumulative effect of the continued
misconduct of the employee proves his incorrigibility and
complete unfitness for police service. The second part imposes a
duty on the competent authority to take into consideration the
length of service of the offender and his claim to pension before
dismissing him. Thus, before a competent authority can exercise
power under rule 16.2 of the Rules, it is imperative for such an
authority to record a finding that the employee is guilty of
gravest acts of misconduct or that he is guilty of continued
misconduct which proves his incorrigibility and complete
unfitness for police service. Absence of such a finding will lead to
a conclusion that the competent authority has not applied its
mind to the nature of misconduct before passing the order of
punishment. It will also lead to a conclusion that the competent
authority has not taken into consideration the service record of
the delinquent employee before imposing the penalty.
7 to 10. xxxxx xxxxx xxxxx
11. If we examine the impugned order of punishment in the
light of the principle laid down by the Supreme Court and this
Court. It becomes clear that though the disciplinary authority
has held the petitioner guilty of gravest act of misconduct, it has
not adverted to the service record of the petitioner before
imposing the extreme penalty of dismissal from service. The
disciplinary authority has also not considered the question as to
whether the petitioner could be awarded a lesser penalty like
compulsory retirement........"
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8. In Dhan Singh Versus State of Haryana and others, 2008 (3)
S.C.T. 816, another Division Bench of this Court held as under:-
"7. We have carefully gone through the dismissal order
dated 27.08.2003 (Annexure P- 2). The punishing authority has
not dealt with the question of definition of gravest misconduct as
provided under Explanation to Rule 16.2, though it has
formulated an opinion that the petitioner absented twice from
duty and his behaviour depicts that he is not fit to be retained in
service and he is incorrigible type of employee. His length of
service and right to pension has not even been taken note of. The
appellate as well as the revisional authorities also rejected the
appeal/revision, even without going into these two questions. It is
pertinent to note that the petitioner did raise these questions in
the memo of revision."
9. In Dhan Singh's case (supra), this Court further observed as
under:-
""17........However, the authorities have not applied their mind
and not taken into consideration the length of service of the
petitioner and his right to pension while awarding the
punishment. It has been stated by the petitioner in ground(c) of
this petition that he has rendered 11 years 9 months service. No
rule has been brought to our notice that the petitioner is not
entitled to any pensionary benefits for rendering about 12 years
of service. Giving consideration to the length of service, the right
to pension is inherent under Rule 16.2 itself and thus it cannot
be ignored. The authorities having failed to adhere to the rule
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while awarding punishment renders the impugned order of
punishment illegal and unwarranted. It is also a settled law that
when a relevant provision is given a go by, it amounts to
arbitrary exercise of power and such an order is not
sustainable."
10. It is clear from the interpretation of the Rule that it provides for
dismissal from service for gravest acts of misconduct or as a cumulative
effect of continued misconduct proving incorrigibility and complete
unfitness for police service. Under the former part of the Rule, gravest acts
of misconduct entail dismissal, whereas under the latter part, it is
cumulative effect of continued misconduct, which invites the punishment of
dismissal from service. In both the situations, incorrigibility of the
delinquent official and complete unfitness for police service has to be
established. Simultaneously, the punishing authority has to take into
consideration the length of service of the delinquent official and his claim
for pension.
11. The punishment order, Ex. P-2, has to be examined in the light of
settled position of law. After noticing the repeated instances of absence
from duty, adverse reports as well as the finding of the enquiry officer,
punishing authority has come to the conclusion that the appellant is
unredeemable and completely unfit for disciplined force. The punishing
authority has also noticed Rule 16.9 of the Rules to form the opinion that
appellant deserves to be dismissed from service. However, the punishing
authority has failed to consider his past service or his claim for pension. In
fact, a perusal of the order shows that there is no reference at all to the
length of service, rendered by the appellant, which was more than eleven
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years and four months till the time the dismissal order was passed. As the
obligatory requirement of the Rule has been breached, this Court is of the
view that the impugned order cannot be sustained on the touchstone of Rule
16.2 (1), ibid. The finding recorded by the First Appellate Court that the
absence of the literal words "length of service and claim for pension" in the
punishment order do not cause any prejudice to the employee cannot
sustained and deserves to be set aside.
12. In the afore-going reasons, appeal is allowed, judgment and
decree passed by the First Appellate Court is set aside and that of the Trial
Court is restored. During the pendency of the appeal, plaintiff-appellant has
expired. As the authorities have failed to adhere to the mandate of the Rule,
matter is remitted to the punishing authority to pass an order afresh in the
light of Rule 16.2 (1) of the Rules keeping in view the settled position of
law as well as subsequent developments. This exercise be carried out within
a period of four months from the date of receipt of certified copy of this
order.
13. Appeal is disposed of.
14. As the main appeal has been disposed of, if any miscellaneous
application is pending, it will also stand disposed of.
(SUVIR SEHGAL)
JUDGE
22.04.2024
Kamal
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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