Balwinder Singh vs State of Punjab and Others

Tejinder Singh Dhindsa, J.—The petitioner, who had been serving on the post of Constable in the Punjab Police, has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India impugning the order dated 5.5.2009, Annexure P3, imposing the punishment of dismissal from service, order dated 17.7.2009, Annexure P4, whereby the statutory appeal filed against the order of dismissal has been rejected as also the order dated 11.11.2009, Annexure P5, whereby even the revision preferred by the petitioner has been dismissed. The brief factual backdrop which would require notice is that the petitioner was enrolled as Constable on regular basis with the Punjab Police on 24.5.1992. He was placed under suspension on 19.6.2008. Enquiry proceedings were initiated against the petitioner on an article of charge drawn against him to the effect that even though he had been assigned duty in the Guard of Dera Sacha Sauda, Moga on 3.6.2008 by the then Head Munshi, he had refused to join such duty. Enquiry report dated 18.12.2008 was furnished by the Enquiry Officer holding the petitioner to be guilty in respect of the aforementioned article of charge. A show cause notice dated 4.2.2009 was issued by the Senior Superintendent of Police, Moga and duly served upon the petitioner contemplating the extreme penalty of dismissal from service. The petitioner submitted his reply to the show cause notice. Upon consideration of the reply and after having afforded an opportunity of personal hearing, vide impugned order dated 5.5.2009 passed by the Senior Superintendent of Police, Moga. Annexure P3, the petitioner has been dismissed from service under Rule 16.2(1) of the Punjab Police Rules, 1934 (hereinafter to be referred as "1934 Rules"). The appeal preferred by the petitioner against the order of dismissal has been rejected in terms of order dated 17.7.2009 passed by the Deputy Inspector General of Police, Ferozepur Range and even the Revision-cum-Mercy Appeal preferred by the petitioner stands rejected in terms of order dated 11.11.2009 passed by the Inspector General of Police, Border, Amritsar.

Learned counsel appearing for the petitioner has assailed the order of dismissal dated 5.5.2009 in terms of contending that under the provisions of Rule 16.2(1) of 1934 Rules, the penalty of dismissal could have been awarded only on account of a gravest act of mis-conduct or on account of the cumulative effect of continued mis-conduct proving incorrigibility and complete unfitness for police service. Learned counsel would argue that the solitary charge levelled against the petitioner was not having proceeded on duty in the Guard of Dera Sacha Sauda, Moga on 3.6.2008. The submission raised is that the extreme penalty of dismissal from service with regard to such solitary act of mis-conduct was wholly unwarranted. Still further, learned counsel would urge that while imposing the extreme penalty of dismissal from service, the Punishing Authority had not considered the length of service rendered by the petitioner i.e. almost 17 years as also his claim to pension as was the requirement under the statutory Rule.

Per contra, learned counsel appearing for the State would refer to the impugned order to submit that not only was the petitioner found guilty of dereliction of duty inasmuch as having refused to discharge the task assigned on 3.6.2008, but in addition thereto, the Punishing Authority had also taken into account the past service record of the petitioner whereby on three separate occasions, separate penalties of forfeiture of service had been imposed upon the petitioner for having remained absent from duty. Accordingly, learned State counsel would argue that this was not a fit case that would warrant interference and there was no scope of any leniency being afforded to the petitioner.

Rule 16.2(1) of the 1934 Rules reads as under:

PPR. 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.

Explanation - For the purpose of sub-rule (1), the following shall, inter alia, be regarded as gravest acts of misconduct in respect of a 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 in-discipline 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 abstentions;

(vii) Spreading disaffection against the Government; and

(viii) Causing riots and the life.

In terms of the mandate of the Rule, it is obligatory for the Punishing Authority prior to imposing the penalty of dismissal to reach a conclusion that the petitioner was guilty of an act of omission or commission which would fall within the ambit of the gravest act of mis-conduct or within the expression cumulative effect of continued misconduct which, in turn, proves incorrigibility and complete unfitness for police service. A perusal of the impugned order dated 5.5.2009, Annexure P3, would clearly show that the Punishing Authority did not follow Rule 16.2 in its letter and spirit. There is no finding recorded in the impugned order as to whether the charge levelled against the petitioner and duly proved as regards not having discharged his duty on 3.6.2008 could be described as the "gravest act of misconduct" or as to whether such solitary act of omission read along with the previous punishments while taking into account his past record would fall within the purview of the expression cumulative effect of continued mis-conduct which, in turn, proves incorrigibility and complete unfitness for police Service insofar as the petitioner is concerned. That apart, it was mandatory for the Punishing Authority to have taken into consideration the length of service of 17 years rendered by the petitioner and his claim to pension prior to imposition of the extreme penalty of dismissal from service under Rule 16.2 of the 1934 Rules. I find that such mandate of the Rule has been given a complete go-by not only by the Punishing Authority while passing the order dated 5.5.2009 but also by the Appellate and Revisional Authorities while passing the impugned orders dated 17.7.2009 and 11.11.2009, Annexures P4 and P5 respectively. The impugned orders, as such, cannot sustain.

In taking such view that it was obligatory for the authorities concerned to have taken into account the length of 17 years of service put in by the petitioner prior to the passing of the impugned order under Rule 16.2 of the 1934 Rules, I would draw support from a Division Bench judgment rendered by this Court in Dhan Singh v. State of Haryana and others, 2009 (1) R.S.J. 62 wherein while considering the mandate of Rule 16.2, it had been observed in the following terms:

The petitioner''s misconduct for remaining absent on two occasions has been established. Even if the act of the petitioner is not considered as "gravest misconduct" as it does not fall within the purview of Explanation appended to rule 16.2, it definitely is an act which constitutes misconduct. There are at least two acts of misconduct. Cumulative effect of misconduct also makes a Police Officer incorrigible and unfit for police service. 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 while awarding punishment renders the impugned order of punishment illegal and unwarranted. It is also settled law that when a relevant provision is given go by, it amounts to arbitrary exercise of power and such an order is not sustainable.

For the reasons recorded above, the impugned order of dismissal dated 5.5.2009, Annexure P3, order dated 17.7.2009, Annexure P4, passed by the Appellate Authority and order dated 11.11.2009, Annexure P5, passed by the Revisional Authority are set aside. The matter is remanded back to the Disciplinary Authority to re-consider the question of punishment to be awarded to the petitioner in the light of the service rendered by him i.e. approximately 17 years as also his right to pension and thereafter fresh orders be passed. Such exercise be completed within a period of four months from the receipt of a certified copy of this order. It is, however, clarified that the order of reinstatement of the petitioner shall remain in abeyance and would depend upon the outcome of such fresh consideration. Petition allowed in the aforesaid terms.