Punjab-Haryana High Court
Surjit Kaur vs State Of Punjab And Others on 3 May, 2024
Neutral Citation No:=2024:PHHC:061366
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215
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-12914-2023
Date of Decision:03.05.2024
SURJIT KAUR ......... Petitioner
Versus
STATE OF PUNJAB AND OTHERS ..... Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr. Ashwani Talwar, Advocate with
Mr. Nikhil Sehrawat, Advocate
for the petitioner.
Mr. Pawan Kumar, DAG, Punjab.
****
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Article 226 of
the Constitution of India is seeking setting aside of orders dated
04.09.2018 (Annexure P-1), 08.11.2019 (Annexure P-2) and order dated
30.04.2022 (Annexure P-3) whereby husband of the petitioner was
dismissed from service.
2. The petitioner is widow of Surinder Pal Singh who joined
Punjab Police as Constable on 31.05.1985. He attained the age of 55
years on 21.11.2017. The respondent considering his service record and
medical condition extended his service for 3 years. The extracts of
service book as enclosed with the petition as Annexure P-6 are
reproduced as below:
"Permission for extension in service by 3 years after
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attaining the age of 55 years.
As per service book of Constable (PR) Surinder Pal Singh
No.03/Mansa, his date of birth is 21/11/1962 and he is
completing his age of 55 years on 20.11.2017. Civil Surgeon,
Mansa has declared the said official medically fit for
performing duties. Therefore, permission is granted for
allowing the above official to serve the department up to
30.11.2020 even after completion of 55 years of age. The
above has been issued as per this office number 18458-
60/B/CRC dated 14/11/2017."
3. The aforesaid employee absented himself from duty and on
account of absence from duty, the jurisdictional SSP vide order dated
04.09.2018 dismissed him from service. He preferred an appeal before
Appellate Authority which came to be dismissed by Inspector General of
Police, Bathinda vide order dated 20.05.2021. He further unsuccessfully
preferred revision before DGP. He passed away on 10.09.2022. This is
how petitioner being widow of deceased employee has preferred present
petition.
4. Mr. Ashwani Talwar, Advocate submits that husband of the
petitioner, on one hand, was granted extension of service considering his
service and medical condition and on the other hand dismissed without
considering his 32 years of service. Due to order of dismissal, the
petitioner has been deprived from benefit of family pension and other
retiral benefits. The respondent has failed to consider length of service as
well as his entitlement to pension. The deceased employee remained in
service for 28 years and he was entitled to pension.
5. Per contra, learned state counsel submits that deceased employee
was habitual absentee. On earlier occasions also he remained absent from
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duty. The respondent had no option except to dismiss him from service.
6. I have heard the arguments of learned counsels for both sides
and perused the record with their able assistance.
7. The husband of the petitioner was dismissed from service in
terms of Rule 16.2 of 1934 Rules, thus, it inevitable to look at said Rules,
which is reproduced as below:-
"16.2. Dismissal. - (1) Dismissal shall be awarded only
for the gravest acts of misconduct or as the cumulative
effect of 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.
(2) If the conduct of an enrolled police officer leads to his
conviction on a criminal charge and he is sentenced to
imprisonment, he shall be dismissed :
Provided that a punishing authority may, in an
exceptional case involving manifestly extenuating
circumstances for reasons to be recorded and with the
prior approval of the next higher authority impose any
punishment other than that of dismissal:
Provided further that in case the conviction of an enrolled
police officer is set aside in appeal or revision, the officer
empowered to appoint him shall review his case keeping
in view the instructions issued by the Government from
time to time in this behalf.
(3) When a police officer is convicted judicially and
dismissed, or dismissed as a result of a departmental
enquiry, in consequence of corrupt practices, the
conviction and dismissal and its cause shall be published
in the Police Gazette. In other cases of dismissal when it is
desired to ensure that the officer dismissed shall not be re-
employed elsewhere, a full descriptive roll, with
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particulars of the punishments, shall be sent for
publication in the Police Gazette."
8. The question of interpretation of Rule 16.2 of 1934 Rules
came before the Apex Court in State of Punjab v. Ram Singh, (1992)
4 SCC 54 wherein it has been held that an officer may be dismissed in
two situations i.e. on account of gravest misconduct or cumulative
effect of continued misconduct. The Court has further held that in case
of habitual absence from duty, keeping in view length of service, an
officer may be compulsorily retired. The relevant extracts of the said
judgment read as:
"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
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it mean that he should not be inflicted with the punishment
of dismissal but be allowed to continue in service for that
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
of all pensionary benefits. Therefore, the word 'or' cannot
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be read as "and". It must be disjunctive and independent.
The common link that connects both clauses is "the
gravest act/acts of misconduct".
[Emphasis supplied]
9. A conspectus of Rule 16.2 of 1934 Rules and perusal of
afore-cited judgment reveals that a police officer may be dismissed
from service subject to following circumstances and conditions:
i. If the police officer is accused of gravest misconduct; or
ii. The cumulative effect of continued misconduct proves
that police officer is incorrigible and completely unfit
for the service; or
iii. The authority passing order shall consider length of
service as well as claim of pension.
10. In the case in hand, the respondent is not pleading that
deceased employee was accused of gravest acts of misconduct. The case
of the respondent is that deceased employee was subjected to punishment
on many occasions, thus, he was incorrigible and completely unfit for
police service. This is apt to notice here that there is no such finding in
the impugned order of dismissal from service. The deceased employee
was subjected to inquiry with respect to his absence. The inquiry report
indicates that gamut of the inquiry was absence from duty from
04.12.2017 to 31.08.2018, however, appellate authority while dismissing
appeal has considered past conduct of the deceased employee. It is a
settled proposition of law that appellate authority cannot travel beyond
impugned order unless permissible by law. The relevant extracts of order
of dismissal are reproduced as below:
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"3. From a careful perusal of the evidence placed on
record, statements of complaint witnesses and conclusion
report of the Inquiry Officer during the departmental inquiry
proceedings, while consenting with the conclusion report of
the Inquiry Officer, former SSP Mansa, Shri Parambir Singh
Parmar, PCS formed his opinion that as to why Constable/
P.R. Surinderpal Singh No 03/Mansa not be dismissed from
Police Department for the charges of persistently remaining
absent from duty since 04.12.2017 and his period of
absenteeism be computed as non- duty-period? For this
purpose, a show cause notice bearing No 1704 Steno dated
04.07.2018 was issued alongwith copy of conclusion report
to Constable/ PR Surinderpal Singh No. 03 Mansa on
14.07.2018 whereby a period of 10 days was granted to
Constable/ P.R. Surinderpal Singh No. O3/Mansa to submit
his reply in writing and furnish his verbal defence That
Constable/ P.R. Surinderpal Singh No. 03/ Mansa received
the same but did not produce his reply in writing or verbal
defence within stipulated period Thereafter, the
departmental inquiry was presented to me for further
proceedings. The undersigned before passing any final order
in the said departmental inquiry issued another notice
bearing No. 1929 Steno dated 01.08.2018 and got the same
delivered through special employee on 03.08.2018 while
granting another opportunity to Constable/ P.R. Surinderpal
Singh No. 03/ Mansa to furnish his defence. In the said
notice, a period of 3 days was granted to furnish his defence,
but the said constable despite of receiving the said notice,
failed to submit his defence in writing or vocally within the
stipulated period. Owing to the same, while affording
another and last opportunity, third notice bearing No. 2125/
Steno dated 16.08.2018 was issued and delivered through
special employee to the Constable Surinderpal Singh No.
03/Mansa on 18.08.2018. It was clearly mentioned in the
said notice that if the defence in writing or vocally is not
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submitted within a period of 3 days from the receipt of the
said notice then it would be considered that the said
constable does not want to state anything towards the
charges pressed in the departmental inquiry and admits the
charges leveled against him, whereupon, final order would
be passed pertaining to the punishment proposed in the
notice without affording any more time, but the said
Constable inspite of receiving the notice by himself and
lapse of the stipulated time period, did not furnish his
defence in writing or vocally before me. Constable/ P.R.
Surinderpal Singh No. 03/ Mansa is a responsible employee
of the disciplinary class of the Police Department. That due
to the persistent absenteeism of the said constable from duty
affects other employees of the department as well which
contributes to decline in discipline, which cannot be
tolerated at any cost. Constable/ P.R. Surinderpal Singh No.
03/ Mansa inspite of receiving the 3 notices by himself in the
departmental inquiry has not yet furnished any reply in
writing or any defence vocally. Wherefrom, it is evident that
the said Constable does not want to state anything in his
defence towards the charges pressed against him in the
departmental inquiry and admits the allegations of
remaining persistently absent from duty leveled against him.
Due to which, I find it apposite to grant the punishment to
the said Constable as proposed in the Notice bearing No.
1704 Steno dated 04.07.2018 (with which I agree). As such
the undersigned hereby passes the order for dismissal of
Constable (P.R.) Surinderpal Singh No. 03/Mansa from the
Police Department w.e.f. 31.08.2018 after noon for the
charges leveled against him in the departmental inquiry for
remaining continuously absent from his duty without leave
and without permission w.e.f. 04.12.2017 and the total
period of 270 days of absence of the said employee w.e.f.
04.12.2017 till 31.08.2018 is being enumerated as non duty
period."
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11. As per Rule 16.24(vii) of 1934 Rules, a disciplinary
authority may consider past service record of a delinquent employee,
however, authority is bound to confront the delinquent employee with
adverse service record which authority is going to rely upon. Rule
16.24(vii) of 1934 Rules is reproduced as below:-
(vii) The enquiring officer shall be proceed to pass
orders of acquittal or punishment, if empowered to do
so, or to forward the case with his finding and
recommendations to an officer having the necessary
powers. Whenever the officer passing the orders of
punishment proposes to take into consideration the
adverse entries on the previous record of the accused
police officer, he shall provide reasonable opportunity
to the defaulter to defend himself; and a copy or at
least a gist of those entries shall be conveyed to the
defaulter and he shall be asked to give such
explanation as he may deem fit. The explanation
furnished by the defaulter shall be taken into account
by the officer before passing orders in the case.
12. Legal position needs to be examined from another angle. In
the impugned dismissal order, it has been mentioned that a show cause
notice was issued to the petitioner, however, neither the petitioner nor the
respondent has placed on record said show cause notice. Both the parties
have placed on record impugned order. From the perusal of impugned
order, it can be culled out that past record was not considered by the
Inquiry Officer and disciplinary authority. The appellate authority while
passing order dated 08.11.2019 considered past record of the deceased
employee in terms of Rule 16.24 (vii) of 1934 Rules, however, neither
past record nor gist of the record was supplied to deceased employee. In
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the absence of compliance of procedure prescribed under Rule 16.24(vii)
of 1934 Rules, the appellate authority could not rely upon past record.
The appellate authority without compliance of procedure prescribed
under Rule 16.24 of 1934 Rules relied upon past record of the petitioner,
thus, there was non-compliance of mandate of Rule 16.24(vii) of the
Rules.
13. The disciplinary authority as well as appellate authority
while passing impugned orders has not taken care of length of service of
the deceased employee as well as his entitlement to pension. As per
statement of Mr. Ashwani Talwar, Advocate made at Bar, in the Police
Department an employee is entitled to pension on completion of ten years
service. The deceased employee had already completed 32 years of
service on the date of passing impugned order thus, he had already
completed qualifying service and was eligible to pension. The respondent
while passing impugned order has neither considered length of service of
deceased employee nor his entitlement to pension. The authorities were
bound to consider these factors while passing impugned orders because
these are mandatorily required to be considered.
14. A Coordinate Bench of this Court in State of Punjab v.
Surjit Singh, 2002(3) SLR 148, while referring to judgment of Apex
Court in Major G.S. Sodhi v. Union of India, 1992 (3) RSJ 502,
affirmed the order of dismissal of the petitioner therein, however, having
regard to the service rendered by the petitioner, granted him liberty to
make representation for the benefits which has accrued in his favour for
rendering qualifying service. The relevant extracts of the judgment read
as:
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"9. After hearing learned counsel for the parties and
perusing the case law cited, I am of the view that no
interference is called for with the order of dismissal
preceded by departmental inquiry wherein misconduct of
absence from duty was fully proved. In the context of the
Punjab Police Rules, absence from duty could be treated
as gravest act of misconduct as held by the Supreme Court
in Ashok Kumar Singh's case (supra), and no doubt, it is
expected and is desirable that the punishing authority
expressly records a finding of this nature and also
consider the past record, and also record reasons for
depriving an employee of pension and reasons for
imposing punishment even where the past record may be
clean, the order passed by the punishing authority is not
open to interference unless it can be held that the charge
was not proved or the order was vitiated by mala fides or
arbitrariness. The observations in the order about treating
the period of absence to be leave cannot be taken to be
condoning the absence but only with a view to maintain
correct record. Even absence of express mention of
consideration of the past record and reasons for depriving
the employee of pension will not always vitiate the order
nor warrant substitution of lesser punishment such as,
compulsory retirement etc. by the civil Court, the scope of
interference by the civil court being limited to see that the
order of punishment was not passed in denial of
reasonable opportunity, was not without evidence and was
not mala fide or arbitrary. Where the charge was fully
proved, as in the present case, order of dismissal was
justified as per the law laid down by the Supreme Court in
Ashok Kumar Singh's case (supra), there was no scope for
interference. This being the position answer to the
questions arising in this appeal have to be in favour of the
appellant-State, and interference by the courts below with
the order of dismissal cannot be held to be legal and valid.
10. In Major G.S. Sodhi v. Union of India, 1992(3)
R.S.J. 502 : 1994(3) SCT 335 (SC), it was observed that
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since the punishment of forfeiture of pension and other
benefits has not been inflicted, such benefits ought to be
given to the concerned employee. Following the said
judgment, a Single bench of this Court in Krishan Lal v.
State of Punjab, 1997(1) R.S.J. 535 observed that claim of
the appellant in that case deserved to be considered
sympathetically. I find that the observations made in the
said case apply to the present case also.
11. For the above reasons, this appeal is allowed,
decree of the courts below is set aside and the suit filed by
the respondent-plaintiff is dismissed. However, having
regard to the fact that the plaintiff had rendered service of
about fifteen years, he should not be deprived of
pensionary and other benefits earned by him for rendering
service. If the plaintiff makes a representation in this
regard, the authorities will consider to grant such benefits
to him and the representation, if any, made by the plaintiff
will be decided within a period of three months, and
benefits, if any held admissible to him shall be paid to him
within three months of the disposal of the representation.
Appeal allowed."
15. The delinquent employee has already passed away so there is
no question of reinstatement. However, keeping in view the length of
service rendered by the deceased employee and the fact that disciplinary
authority, in the impugned order, has neither taken into consideration his
length of service nor claim for pension, as mandated by Rule 16.2 of
1934 Rules, the impugned order is hereby modified to the extent the
punishment of dismissal from service is substituted by compulsorily
retirement. In the normal course, the matter is remanded back to the
authorities to re-consider quantum of punishment, however, considering
the fact that employee has already passed away, this Court finds it in the
interest of justice, equity and fitness of things to modify quantum of
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punishment.
16. As conceded by Mr. Ashwani Talwar, the petitioner would
get pension from 01.05.2024 and gratuity, however, she would not be
entitled to arrears and any other retiral/terminal benefit.
17. The respondents are hereby directed to determine family
pension and gratuity of the petitioner within three months from today. It
is made clear that the petitioner shall not be entitled to interest on
gratuity.
18. Disposed of in above terms.
( JAGMOHAN BANSAL )
JUDGE
03.05.2024
Ali
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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