(O&M) State Of Punjab Etc vs Satpal
2024 Latest Caselaw 127 P&H

Punjab-Haryana High Court

(O&M) State Of Punjab Etc vs Satpal on 5 January, 2024

Author: Anil Kshetarpal

Bench: Anil Kshetarpal

                                                     Neutral Citation No:=2024:PHHC:001188




                                                                    2024:PHHC:001188



          In the High Court of Punjab and Haryana, at Chandigarh


                            Regular Second Appeal No. 5525 of 2003 (O&M)

                                                      Reserved On: 15.11.2023
                                                    Pronounced On: 05.01.2024


The State of Punjab and Others
                                                                     ... Appellant(s)

                                           Versus

Sat Pal
                                                                  ... Respondent(s)

CORAM: Hon'ble Mr. Justice Anil Kshetarpal.

Present:      Mr. Vikas Arora, Assistant Advocate General,
              Punjab, for the appellant(s).

              Mr. Harsh Chopra and Mr. Manoj R. Sharma, Advocates
              for the respondent.

Anil Kshetarpal, J.

CM-13901-C-2003

1. For the reasons stated in the application, the same is allowed

and delay of four days in filing the appeal is condoned.

RSA-5525-2003

2. The Regular Second Appeal in the States of Punjab and

Haryana and Union Territory, Chandigarh is governed by Section 41 of the

Punjab Courts Act, 1918 and not by Section 100 of the Code of Civil

Procedure, 1908, as held by a five Judge Bench of the Supreme Court in

Pankajakshi (Dead) through LRs v. Chandrika and Others (2016) 6 SCC

157.

3. This is defendants' appeal against the concurrent findings of

facts arrived at by both the Courts below while decreeing the plaintiff's suit

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for the grant of decree of declaration to the effect that the order whereby he

was dismissed from service and deprived him of full pay and and

allowances during the period of suspension by the Senior Superintendent of

Police, Gurdaspur, on 09.07.1996 is illegal, invalid, erroneous, unlawful and

against equity and fair play. The correctness of order passed on 25.09.1997

by the Appellate Authority was also questioned.

4. On a careful perusal of the judgment passed by both the Courts

below, it is evident that the respondent was already suspended from service.

He remained absent from duty without applying for leave w.e.f. 26.12.1994

(8.00 a.m.) to 14.03.1995 i.e. for a period of two months, 17 days and seven

hours. After serving the charge sheet and holding a departmental inquiry

with respect to the misconduct, the Disciplinary Authority ordered the

respondent's dismissal from service. The First Appellate Court, while

dismissing the appeal, has recorded the following findings:-

I) Despite the repeated opportunities, the respondent did not

participate in the departmental inquiry except producing

the medical certificate issued by Dr.Bachittar Singh's

Hospital, Pathankot.

II) The respondent is not likely to become a good police

officer.

III) Persistent acts of absence even when the departmental

inquiry is being conducted are proved.

IV) There is substantial compliance of Sub Rule (ix) of Rule

16.24 of the Punjab Police Rules.

5. However, the First Appellate Court has upheld the judgment of

the trial Court on the following two counts:-

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i) There is infraction of Rule 16.2 of the Punjab Police

Rules in the disciplinary proceedings.

ii) The respondent's absence during the period of suspension

from service cannot be made a basis to hold a

departmental inquiry against him.

6. Heard the learned counsel representing the parties at length and

with their able assistance, perused the paper-book along with the

requisitioned record.

7. On 09.12.2004, the Court passed the following order:-

"Learned counsel for the appellant cites 1997(2) SCC

550 to contend that even during the suspension. the employee

can be charge-sheeted for absence from duty under Rule 16.21

of the Punjab Police Rules.

In view of the above, the following question of law arises

for consideration.

"Whether the services of the plaintiff were rightly

terminated on account of his absence from duty during

suspension period?"

Admitted.

Stay execution of the decree."

8. All this while, the respondent remained out of service. He was

appointed as a temporary Constable on 04.08.1989. The First Appellate

Court has found that consistently the respondent was in the habit of

remaining absent.

9. The learned counsel representing the parties have also filed

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their respective synopsis along with the gist of their arguments apart from

addressing the oral arguments.

10. It shall be noted here that the Additional District Judge has

relied upon a Division Bench judgment of this Court passed in Ex.HC

Munshi Ram v. The State of Haryana and Others 1991(2) RSJ 345 to hold

that there is infringement of Rule 16.2 of the Punjab Police Rules as the

Disciplinary Authority did not consider that the single act of absence from

duty would not result in the gravest act of misconduct and his past service

was not taken into consideration while ordering dismissal. In fact, the

aforesaid view of the Division Bench has been explained by another

Division Bench of this Court in State of Punjab v. Constable Daljit Singh

1998(4) Service Law Reporter 413. After considering Rule 16.2 of the

Punjab Police Rules, the Division Bench has held as under:-

"12. The respondent was a member of the disciplined force.

No explanation whatsoever much less than a reasonable one

for absence from duty was given. Still further, it was not the

solitary act of indiscipline. It has been found that he had

remained absent even earlier. In fact, it has been observed that

he is a habitual absentee. Furthermore, a case under the

Opium Act was registered against the respondent. He was

undoubtedly given the benefit of doubt. Yet, he was not clearly

exonerated of the charge. In view of these acts, the competent

authority could have formed the opinion that the respondent

was not a desirable person to be retained in a disciplined force.

Still further, it cannot be said that if a member of the

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disciplined force remains absent from duty, he is not guilty of a

grave act of misconduct. In fact, their Lordships of the Supreme

Court have adversely commented on the conduct of a member

of the disciplined force who had remained absent from duty.

Reference in this behalf may be made to a decision of the

Supreme Court in State of U.P. and others v. Ashok Kumar

Singh and another, 1996(1) S.L.R. 291: 1996(2) SCT 139. It

was inter alia observed by their Lordships that a police

constable serves in a disciplined force which demands strict

adherence to the rules and procedure more than any other

department. Their Lordships disapproved the decision of the

High Court that 'absence from duty would not amount to such a

grave charge'. In view of this authoritative view of the Apex

Court, we cannot accept the contention raised on behalf of the

respondent that he was not guilty of a grave misconduct so as

to warrant the imposition of extreme penalty of dismissal from

service."

11. This Court has also carefully gone through the judgment passed

by the Supreme Court in State of U.P. v. Ashok Kumar Singh and Another

(1996) 1 SCC 302. The Supreme Court has overruled the decision of the

High Court that "absence from duty would not amount to such a grave

charge".

12. In this case, the First Appellate Court has itself found that the

respondent is not likely to become a good police officer.

13. The First Appellate Court has also erred with respect to the

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second reason in view of the judgment passed by the Division Bench of this

Court in Constable Daljit Singh's case (supra). In the aforesaid case, the

judgment of the Division Bench in Ex.HC Munshi Ram's case (supra) has

been explained and held as under:-

"6. It is apt to notice the relevant provisions of the rule.

Clauses (1) and (2) may be usefully reproduced. These provide

as under:-

(1) A police officer shall not by reason of being

suspended from office cease to be a police officer. During

the term of such suspension the powers, functions and

privileges vested in him as a police officer shall be in

abeyance, but he shall continue to be subject to the same

responsibilities, discipline and penalties and to the same

authorities, as if he had not been suspended.

(2) A police officer under suspension shall be

transferred to the lines, if not already posted there. He

shall attend all roll calls and shall be required to

perform such duties and to attend such parades as the

Superintendent may direct; provided that he shall not

perform guard duty or any other duty entailing the

exercise of the powers or functions of a police officer;

shall not be placed on any duty involving the exercise of

responsibility, and shall not be issued with ammunition.

A police officer under suspension shall ordinarily be

confined to lines when off duty, but shall be allowed

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reasonable facilities for the preparation of his defence.

When transferred to the lines under this rule Lower

Subordinates shall deposit their belts and Upper

Subordinates their revolvers, belts and swords with the

Lines Officer."

A perusal of the above provisions shows that even on

suspension a police officer does not cease to be "a police

officer". Only his powers, functions and privileges are held in

abeyance. He continues to be subjected to the same

"responsibilities, discipline and penalties.........as if he had not

been suspended." Still further, clause (2) makes it incumbent on

the police officer "to attend all roll calls and perform such

duties and to attend such parades as the Superintendent may

direct." He has to be ordinarily "confined to lines when off

duty......... When transferred to the lines....... Lower

Subordinates shall deposit their belts......... The rule is clear

and categoric. It requires a constable to remain present in the

lines. He has to attend to roll calls and to perform such duties

as may be assigned to him. He is required to attend parades.

The purpose of this provision is obvious. A member of the

disciplined force is required to abide by the discipline of the

service. He has to remain physically fit. With this purpose in

view, the rule-making authority has categorically made a

provision to ensure that he does not get lethargic by sitting at

his house. He must remain present and continue to follow the

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normal routine. In case the constable does not abide by the

discipline of the force as contemplated under the provisions of

rule 16.21, he is liable to be treated as absent from duty. In this

situation, the contention raised on behalf of the plaintiff-

respondent that during the period of suspension he was not

bound to remain present in the lines and as such could not have

been treated as absent from duty, cannot be sustained."

14. Another Division Bench of this Court in Ex. Constable Jagan

Singh v. Director General of Police, Haryana Etc. 2009(3) SLR 227, while

relying upon the judgment of the Supreme Court in State of Punjab v.

Dharam Singh (1997) 2 SCC 550, interpreted Rule 16.21 of the Punjab

Police Rules and held that a police officer, who has been suspended, is

bound to attend all roll calls and to attend such parades as the

Superintendent of Police may direct. The Supreme Court also interpreted

Rule 16.21 of the Punjab Police Rules in the following manner:-

"4. A reading of it would clearly indicate that even during

the period of suspension the police officer is required to attend

to roll call and be available to the authorities. The payment of

subsistence allowance, as ordered, under the suspension rule is

one facet of it and his duty to be present is another. Non-

payment of subsistence allowance does not entitle a delinquent

officer to be absent from duty. It is his duty to claim subsistence

allowance, go to the office and collect subsistence allowances

and if it is not paid, necessary representation to the higher

authorities and, if the grievance is not redressed, to the

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appropriate forum seeking payment, may be made. But that

does not mean that the delinquent officer, in the face of the

express rule, can absent himself from duty. Under these

circumstances, the conclusion reached by the disciplinary

authority that he was willfully absent from duty is well

justified."

15. In view of the aforesaid position, both the reasons assigned by

the First Appellate Court are erroneous.

16. Even otherwise, it is evident that the respondent used to remain

absent from duty. He led no evidence in the departmental inquiry to prove

that he was admitted in Dr.Bachittar Singh's Hospital at Pathankot.

Furthermore, he never applied for leave and remained absent continuously

for a period of two months and 17 days. Even during the conduct of

departmental inquiry, the respondent did not participate. On the basis of the

inquiry report, a show cause notice was issued to the respondent to which he

submitted his reply. The Disciplinary Authority took into consideration all

aspects of the matter. Moreover, the respondent only remained in service for

a period of merely five years as he was appointed on 04.08.1989, whereas

he was suspended in the year 1994.

17. Keeping in view the aforesaid facts and discussion, the present

appeal is allowed. The judgment passed by both the Courts below are not

sustainable being erroneous and hence, are set aside. It is held that the

services of the respondent were correctly terminated on account of his

absence from duty during his suspension period.

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18. The miscellaneous application(s) pending, if any, shall stand

disposed of.

(Anil Kshetarpal) Judge January 05, 2024 "DK"

        Whether speaking/reasoned :Yes/No
        Whether reportable               : Yes/No




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