Dhani Devi and Others vs The DGP Haryana and Others

Bharat Bhushan Parsoon, J.—Dhanpat Singh, working as Head Constable with the respondents, having completed about 20 years of services, was dismissed from service on 17.09.1992. His dismissal from service has its genesis in his alleged continued absence from duty after he had proceeded on leave for 30 days. He had not resumed his duties on the scheduled date i.e. 13.02.1992. When questioned on this count, after he reported for duty on 11.07.1992, he had put forth plea of his illness placing reliance on medical certificate of 29.02.1991 (Annexure P-2), whereby 39 days leave had been sought and on further medical certificate of 23.05.1992 (Annexure P-4) whereby 49 days leave had been sought, as had been recommended by the doctor.

During the period of his absence, efforts of respondent No. 3 in persuading him to join his duty failed. Despite notice sent to him, he neither came for duty nor explained reasons for his absence. Departmental inquiry was initiated against him. Despite notice (along with statement of allegations and list of witnesses [Annexure P-6)] having been sent to him, he did not appear. Even when, the Inquiry Officer had sent notice on 25.05.1992 at his residence vide which he was called upon to appear before the Inquiry Officer at 7.00 a.m. on June 01, 1992, he did not join the proceedings resulting in ex-parte proceedings against him. Report of Inquiry Officer of 10.06.1992 (Annexure P-8) had indicted him.

On the basis of inquiry report (Annexure P-8), punishing authority i.e. Respondent No. 3 had sent show cause notice to Head Constable Dhanpat Singh on 04.07.1992 (Annexure P-9) whereupon detailed reply (Annexure P-10) was submitted by him challenging his proposed punishment of dismissal from service. Vide order dated 17.09.1992 (Annexure P-11), he was dismissed from service. During pendency of the departmental appeal, he died on 22.12.1992. In appeal decided posthumously on 15.01.1993, order of his dismissal was confirmed.

Legal heirs of Head-Constable Dhanpat Singh (deceased) have challenged dismissal order (Annexure P-11) as also order in appeal (Annexure P-13) claiming that Rule 16.2 (1) of the Punjab Police Rules, 1934 was not followed correctly. It is alleged that dismissal of Head Constable Dhanpat Singh could have been ordered only as a consequence of gravest act of misconduct or because of his continued misconduct proving incorrigibility and complete unfitness for police service. In short, it is claimed that neither the inquiry was held as per procedure nor the dismissal order was made as per law.

Seeking quashing of orders (Annexure P-11 and P-13), the petitioners have claimed benefit of entire service of Head Constable Dhanpat Singh and have also sought consequential relief.

Asserting legality and validity of departmental inquiry against Head Constable Dhanpat Singh, it is claimed by the respondents that he was a habitual absentee. It is averred that when having gone on Earned Leave on 13.01.1992 for 30 days, he was continuously absent and had returned only on 16.07.1992, when he had submitted medical certificates, which on verification were found to be forged and bogus, thus, his claim was belied that he remained ill during the period of his absence. Asserting that he was given opportunity to defend himself at every stage and was also heard in person on 16.07.1992, his dismissal order as also order in appeal, are claimed to be valid.

Counsel for the parties have been heard while going through the paper book.

Neither Head Constable Dhanpat Singh returned on scheduled date after availing Earned Leave nor he had sent any explanation justifying his absence. Rather, he preferred to abstain from participating in the departmental inquiry. Having been a disciplined soldier with 33 certificates of merit (Annexure P-1) in Athletics, Wrestling etc. and having been in the Rank of Head Constable, he was expected to be a responsible official. Medical certificates furnished by him had also been proved to be forged and bogus.

At this stage, reference is to be made to Rule 16.2 (1) which reads as under:-

Dismissal shall be awarded only for the gravest act of mis-conduct or as the cumulative effect of continued mis-conduct 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 purposes 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 indiscipline amongst fellow policemen;

(v) promoting feeling of enmity or hatred between different classes 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 like.

This provision of the Rule has been examined qua the issue as to what constitutes the gravest act of misconduct and what is meant by incorrigibility and complete unfitness for police service?

The police being a disciplined force, absence from duty has been considered to be gravest act of mis-conduct. Reference may be made to a Division Bench judgment of this Court in Karnail Singh Ex-Constable Vs. The State of Punjab and Another, as also judgment of the Hon''ble Apex Court in State of U.P. and others Vs. Ashok Kumar Singh and anothers,

It remains a fact that Head Constable Dhanpat Singh had continuously been playing truant. The petitioners have sought conversion of punishment of dismissal to that of compulsory retirement so that the petitioners who are legal heirs of the deceased, are saved from continued starvation as dismissal of the deceased has resulted even in non-release of family pension to them. Support has been sought from authority cited as Satbir Singh Constable Vs. The Director General of Police, Haryana and others CWP No. 11500 of 1997 decided on 11.01.2013 wherein order of dismissal was converted into order of compulsory retirement. It is claimed that the competent authority neither considered his merit certificates nor his length of service in terms of Rule 16.2(1) ibid.

Keeping in view the facts and circumstances, of his continued unexplained absence, inquiry report (Annexure P-8) indicting him cannot be questioned in its outcome. However, keeping in view the length of service rendered by the deceased, the deceased was entitled to lesser punishment of compulsory retirement. Reference may be made to authorities reported as Harjit Singh and Another Vs. The State of Punjab and Another, In the said case, vide order of 21.01.1985 dismissal of the petitioner was effected. Hon''ble Apex Court came to the conclusion that it would be appropriate if order of dismissal was converted into that of compulsory retirement to meet the ends of justice since the occurrence was of the year 1984. The relevant extract from this cited authority, is appended as below:-

In the aforementioned situation, ordinarily, we would have asked the disciplinary authority to consider the matter afresh, but the occurrence had taken place in the year 1984. The appellants and the said Parminder Singh had worked only for a few years, one of them is dead. In the aforementioned situation, we are of the opinion that we would be justified to fix the quantum of punishment. We are of the opinion that in the facts and circumstances of this case and in particular having regard to the passage of time, punishment of compulsory retirement will meet the ends of justice. If other eligible, the delinquents would be entitled to retiral benefits. The appeal is allowed to the aforementioned extent.

To enable the person dismissed from service to get his retiral dues, this Court had also modulated the order of dismissal to order of voluntary retirement. Reference may also be made to authorities reported as SI Surinder Singh vs. State of Punjab and others, 2008(4) SCT 72 and Shiv Raj Singh Sidhu Vs. Union of India (UOI) and Others

The deceased had almost 20 years'' service to his credit at the time of dismissal but length of his service had not been taken into consideration by the disciplinary authorities.

Keeping in view all these facts and particularly that he has already expired on 22.12.1992, it is appropriate to convert the order of dismissal into order of his compulsory retirement w.e.f. 17.09.1992.

Respondents would process the case of the deceased for release of retiral benefits to his LRs, in accordance with the Rules within a period of 2 months and pay along with interest @ 9% per annum. In case compliance is not made within the stipulated period of two months, the amount would carry interest @ 12 % per annum from the date of expiry of that period till the date of actual payment. The writ petition is partly allowed to the extent as mentioned above.