Punjab-Haryana High Court
Gajendra Singh vs Union Of India And Ors on 24 April, 2024
2024:PHHC:055681
121
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-17297-2023
Date of Decision: 24.04.2024
GAJENDRA SINGH ...Petitioner
Versus
UNION OF INDIA AND ORS ...Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present:- Mr. Saurabh Bajaj, Advocate
for the petitioner.
Mr. Ramesh Chand Sharma, Advocate
for the respondents.
*****
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Articles 226 of
Constitution of India is seeking setting aside of order dated 21.11.2022
(Annexure P-2) and order dated 27.01.2023 (Annexure P-3) whereby
petitioner after being declared as deserter, has been terminated from service.
2. The petitioner joined ITBPF as constable on 19.02.2012. He
remained absent from duty from 21.06.2019 to 08.11.2019. For the said act,
he was punished by Competent Authority. He again remained absent from
duty from 12.11.2020 to 27.04.2021. He was again subjected to punishment.
Despite aforesaid punishments, he absented himself from duty on
22.08.2022. The respondent-Department sent multiple letters/
communications to petitioner to join his duty, however, he did not join. Left
with no other option, the respondent constituted a Judicial Enquiry
Committee which conducted enquiry and found the petitioner guilty of
authenticity of this order/judgment.
misconduct on account of absence from duty. He did not even join
proceedings before Enquiry Committee. The respondent vide order dated
21.11.2022 declared him deserter and thereafter vide order dated 27.01.2023
dismissed from service.
3. Mr. Saurabh Bajaj, Advocate submits that petitioner has been
terminated without granting proper opportunity of hearing. On account of
Covid -19, he could not join his duty. During the said period, he was blessed
with a female child and on account of Covid-19 restrictions he was not able
to join.
4. I have heard the counsel for the petitioner and perused the
record.
5. From the perusal of record, it comes out that petitioner joined
respondent-Force on 19.02.2012. He remained absent from duty from
21.06.2019 to 08.11.2019 (151 days) and again from 12.11.2020 to
27.04.2021 (167 days). The petitioner apart from said period opted to remain
absent w.e.f 22.08.2022. He was declared deserter vide order dated
21.11.2022 (Annexure P-2).
6. Record reveals that multiple communications were made to
him, however, he did not opt to join duty. It is apt to mention here that there
were no Covid-19 restrictions during August' 2022 or thereafter. The ground
of absence on account of Covid-19 may be justified during 2020-2021,
however, there was no justification to remain absent on the ground of Covid-
19 in August' 2022. As a member of disciplined force, he was bound to join
his duty. He was declared deserter in November' 2022 which indicates that
authenticity of this order/judgment.
he did not come forward to join duty from August' to November' 2022. He
did not join enquiry. This demonstrates total irresponsible behavior on part
of the petitioner.
7. The petitioner was concededly a part of disciplined force and he
was bound to strictly follow the rules and regulations. Armed Forces cannot
retain any undisciplined member. It is not case of the petitioner that he, for
the first time, committed alleged offence and was subjected to harsh
punishment. Had the alleged offence been his first offence, this Court could
consider principle of proportionality and ask the respondents to reconsider
quantum of punishment, however, as noted above, the petitioner is a habitual
offender and he has been punished more than once. The case of the
petitioner is squarely covered by judgment of Apex Court in Ex Sepoy
Madan Prasad v. Union of India and others, (2023) 9 SCC 100. The
relevant extracts of the judgment read as:
"11. It is apparent from the above table that the
appellant was a habitual offender. There were four red
ink entries and one black ink entry against him before the
present incident cited at Serial No. (f) above. Such gross
indiscipline on the part of the appellant who was a
member of the Armed Forces could not be countenanced.
He remained out of line far too often for seeking
condonation of his absence of leave, this time, for a
prolonged period of 108 days which if accepted, would
have sent a wrong signal to others in service. One must
be mindful of the fact that discipline is the implicit
hallmark of the Armed Forces and a non-negotiable
condition of service.
XXXX XXXX XXXX
authenticity of this order/judgment.
18. For the aforesaid reasons, we do not find any
infirmity in the impugned judgment [Madan Prasad v.
Union of India, 2015 SCC OnLine AFT 887] passed by
the AFT. The appellant had been taking too many
liberties during his service and despite several
punishments awarded to him earlier, ranging from
imposition of fine to rigorous imprisonment, he did not
mend his ways. This was his sixth infraction for the very
same offence. Therefore, he did not deserve any leniency
by infliction of a punishment lesser than that which has
been awarded to him.".
8. A Division Bench of this Court while dealing with similar issue
in Balwinder Singh versus State of Punjab and others, (LPA-934-2023,
decided on 21.02.2024), has held that act of remaining absent from duty for
a man in uniform is a gravest act of misconduct. The relevant extracts of the
judgment read as:
"That a man in uniform has to maintain greater
discipline and the act of remaining absent from duty is a
gravest act of misconduct. Reliance can be placed upon
the judgment in State of Punjab & others Vs. Mohinder
Singh, 2005 (12) SCC 182 wherein the Apex Court
allowed the appeal by noticing that there was absence of
5 ½ months and it was reprehensible conduct by the
Constable. The basic principle which has been time and
again laid down is that remaining absent from duty after
the sanctioned leave by a uniformed personnel is fatal.
Keeping in view the fact that the appellant voluntarily
kept away from his duties which were very much required
by his department and the fact that the matter was duly
authenticity of this order/judgment.
enquired upon. Copy of the notice was sent to his foreign
address through registered post to which he had not
replied and also copy had been sent to his father which
would be clear from the order of dismissal."
9. As the petitioner despite being member of disciplined Armed
Force was habitual absentee and did not mend his behavior, this Court does
not find it appropriate to look into quantum of punishment awarded to him.
10. In the wake of above facts & findings, judgment of the Apex
Court in Madan Prasad (Supra) and Division Bench Judgment of this
Court in Balwinder Singh (Supra), this Court is of the considered opinion
that the present petition being bereft of merit deserves to be dismissed and
accordingly dismissed.
(JAGMOHAN BANSAL)
24.04.2024 JUDGE
himanshu
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
authenticity of this order/judgment.
