Punjab-Haryana High Court
Hy.State vs Om Singh on 23 April, 2024
Neutral Citation No:=2024:PHHC:055577
-1-
RSA-1869 of 1999 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-1869 of 1999
Reserved on: 03.04.2024
Pronounced on: 23.04.2024
Haryana State
......Appellant
Versus
Om Singh
......Respondent
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Argued by: Mr. Saurabh Mohunta, DAG, Haryana.
None for the respondent
(proceeded against ex parte vide order dated 31.07.2001)
NAMIT KUMAR, J.
1. Instant Regular Second Appeal has been filed by the State
of Haryana against the judgment and decree dated 26.02.1998, passed
by the Court of learned District Judge, Hisar, whereby appeal filed by
the respondent-plaintiff against the judgment and decree dated
06.02.1997 has been accepted and suit filed by him for declaration has
been decreed.
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 filed a suit against the defendant
seeking a decree for declaration to the effect that order dated
15.12.1992 passed by S.P. Hisar and the order dated 11.02.1994 passed
DIG, Hisar Range, Hisar and the order dated 27.07.1994 rejecting his
1 of 10
Neutral Citation No:=2024:PHHC:055577
RSA-1869 of 1999 (O&M)
representation are illegal, null and void and he is entitled to wages and
other consequential relief of 50 days leave by way of converting this
leave as leave with wages. It is pleaded by the plaintiff that he is
serving as ASI under the defendant on regular basis and has an
unblemished service record. During his posting as ASI at Police
Station Tohana, he proceeded on leave for two days and was to report
back on duty on 30.01.1992 (forenoon) but on that day when he was
standing in the bus stand at Rohtak, he had an acute and severe pain in
his spinal cord and was taken to the hospital for medical treatment. He
remained under the treatment of Dr.S.N.Dua for two months and sent a
telegram regarding his illness. When he reported back on duty on
20.03.1992, he was charge sheeted for his absence for the period of 50
days and enquiry was conducted by DSP Fatehabad against him. On
the basis of the enquiry report, he was served with show-cause notice
and he submitted his reply to the same. S.P. Hisar, vide impugned
order dated 15.12.1992, ordered to convert the 50 days' leave as leave
without pay. It is pleaded that all impugned orders are illegal on the
grounds that the enquiry officer had issued the charge-sheet as well as
summary of allegations; prescribed procedure of conducting the
departmental enquiry was not properly followed; no sanction was
obtained from District Magistrate as required under Rule 16.38 of the
Punjab Police Rules (hereinafter called as 'the Rules'); impugned orders
are not speaking orders and he was not offered an opportunity of being
personally heard before passing these impugned orders. It is further
pleaded that he served a notice upon the defendants under Section 80
2 of 10
Neutral Citation No:=2024:PHHC:055577
RSA-1869 of 1999 (O&M)
CPC before institution of the suit but in vain.
3. The defendant, in its written statement, has contested the
claim of the plaintiff, inter-alia, on the grounds that the suit is not
maintainable in the present form and is pre-mature. Plaintiff is
estopped from filing the same by his own act and conduct and has no
locus standi to file it. On merits, it has been asserted that the plaintiff
wilfully remained absent from duty for 50 days which amounts to a
grave misconduct on his part. Impugned orders are perfectly legal
because the enquiry officer was competent to issue charge sheet as well
as summary of allegations. Prescribed procedure was strictly followed
by the enquiry officer during the enquiry proceedings. No sanction of
the District Magistrate under rule 16.38 was required to be obtained
before conducting departmental enquiry in the present case. Plaintiff
was given an opportunity of being personally heard by the punishing
authority before passing the order dated 15.12.1992. No appeal from
the above-said order was maintainable and therefore, the then DIG
Hisar Range, Hisar had correctly rejected the appeal.
4. In the replication, the plaintiff has reiterated his earlier
stand as taken in the plaint besides controverting the assertions of the
defendant as put-forward in his written statement.
5. From the pleadings of the parties, following issues were
framed: -
1. Whether the impugned orders dated 15.12.92 and
11.2.94 passed by S.P.Hisar and DIG Police (Hisar
Range) respectively and the impugned order dated
27.7.94 passed by DIG (Hisar Range) regarding the
rejection of representation of the plaintiff are
illegal, null, void as alleged in the plaint? OPP
3 of 10
Neutral Citation No:=2024:PHHC:055577
RSA-1869 of 1999 (O&M)
2. If issue no. 1 is proved, whether the plaintiff is
entitled to the wages and other consequential relief
of converting the 50 days leave into the leave with
wages as alleged? OPP
3. Whether the suit is not maintainable in its present
form ? OPD
3/4. Whether the plaintiff is estopped by his own act
and conduct from filing the present suit ? OPD
4. Whether the plaintiff has no locus standi to file the
present suit? OPD
5. Whether the suit is pre-mature? OPD
6. Relief.
6. Both the parties led their oral as well as documentary
evidence.
7. The trial Court, vide judgment and decree dated
06.02.1997 dismissed the suit of the plaintiff. Aggrieved against the
judgment and decree dated 06.02.1997, respondent-plaintiff preferred
an appeal before the lower Appellate Court, which was accepted and
suit of the plaintiff has been decreed vide judgment and decree dated
26.02.1998.
8. Learned counsel for the appellant contended that the lower
Appellate Court wrongly decreed the suit of the respondent-plaintiff by
reversing the well-reasoned judgment of the trial Court. Lower
Appellate Court has failed to appreciate that absence from duty by a
member of the disciplined force is a gravest act of misconduct and for
long absence of 50 days, respondent-plaintiff was rightly punished by
the department. He further contended that judgment of the lower
4 of 10
Neutral Citation No:=2024:PHHC:055577
RSA-1869 of 1999 (O&M)
Appellate Court is erroneous based on conjectures and surmises and is
the result of non-application of mind and, therefore, is liable to be set
aside. He also submitted that the proper 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 15.12.1992 and 11.02.1994
passed by the departmental authorities are wholly legal, justified and
sustainable in law. Therefore, the judgment and decree of the lower
appellate Court is liable to be set aside.
9. Respondent was proceeded against ex parte vide order
dated 31.07.2001.
10. I have heard learned counsel for the appellant and perused
the record.
11. 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,
5 of 10
Neutral Citation No:=2024:PHHC:055577
RSA-1869 of 1999 (O&M)
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."
12. 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
6 of 10
Neutral Citation No:=2024:PHHC:055577
RSA-1869 of 1999 (O&M)
year to enable him to get his full pension. The answer is
obviously no. Therefore, a single act of corruption is
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
7 of 10
Neutral Citation No:=2024:PHHC:055577
RSA-1869 of 1999 (O&M)
of all pensionary benefits. Therefore, the word 'or' cannot
be read as "and". It must be disjunctive and independent.
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......."
13. 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."
14. 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.
15. In the present case, respondent-plaintiff remained absent
from duty continuously for 50 days without any reasonable cause,
which amounts to mis-conduct on his part. Perusal of the record,
shows that on account of wilful absence of the respondent from duty,
8 of 10
Neutral Citation No:=2024:PHHC:055577
RSA-1869 of 1999 (O&M)
charge-sheet was issued to the respondent-plaintiff; enquiry was
conducted by DSP Fatehabad and on the basis of enquiry report, he was
served with show-cause notice to which respondent-plaintiff submitted
his reply. Thereafter, Superintendent of Police, Hisar, vide order dated
15.12.1992 ordered to convert 50 days' leave as leave without pay.
Thereafter, the appeal and revision filed by the plaintiff were rejected.
Respondent-plaintiff failed to show as to how the impugned orders
were illegal and proper procedure was not followed by the department
while punishing him inasmuch as plaintiff was given due opportunity to
cross-examine the prosecution witnesses as well as examine his own
witnesses in defence. Rather by taking a lenient view, his absence was
treated as leave without pay by the punishing authority. The
punishment awarded to the respondent i.e. leave without pay is not
covered under Chapter-XVI of the Punjab Police Rules, 1934 (as
applicable to the State of Haryana). Therefore, in such eventuality, the
service conditions and benefits of respondent have not been affected in
any manner except monetary loss caused to him for 50 days.
16. In view of the above, I find that the lower Appellate Court
erred in law in interfering in the order dated 15.12.1992 and reversing
the well-reasoned judgment of the trial Court. The act of absence from
duty for 50 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 any act of delinquency would
be "misconduct", and certainly so, if it is subversive of discipline. The
9 of 10
Neutral Citation No:=2024:PHHC:055577
RSA-1869 of 1999 (O&M)
order dated 15.12.1992 is neither harsh nor disproportionate to the
misconduct.
17. Consequently, the appeal is allowed. The judgment and
decree passed by the lower Appellate Court is set aside and the suit
filed by the respondent-plaintiff is dismissed.
18. Pending applications, if any, stand disposed of
accordingly.
(NAMIT KUMAR)
23.04.2024 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
10 of 10
