Ex-Constable Baljit Singh vs The State of Haryana and Others

Gurmeet Singh Sandhawalia, J.—The present writ petition filed by the petitioner is directed against the order dated 27.1.1984 (Annexure P-3) whereby he was dismissed from police force on the ground that he had remained absent from duty with effect from 28.7.1983 to 7.8.1983 which tantamounted to grave misconduct. The said order has been upheld in appeal by respondent No. 3-the Deputy Inspector General of Police, Ambala Range, Ambala on 11.6.1984 (Annexure P-4) and in revision on 7.1.1986 (Annexure P-5) by respondent No. 4-the Director General of Police, Haryana, Panchkula. The sole ground which has been raised by the petitioner''s counsel is that he was enrolled as Constable in the Haryana Police with effect from 1.9.1970 and by now the petitioner has attained the age of superannuation. While passing the order of dismissal the authorities below have failed to take into consideration the length of service which is the mandate of Rules 16.2 the Punjab Police Rules, 1934 (as applicable to the State of Haryana) (hereinafter referred to as the ''PPR''). It is submitted that if the order of dismissal is converted into an order of compulsory retirement, the petitioner having served for a period of almost 14 years would be entitled to the benefit of pension which would enable him to survive and make both ends meet.

Counsel for the State on the other hand contended that the petitioner was involved in a criminal case under the Opium Act, 1878 during the period of absence though he was acquitted by the Sessions Judge vide order dated 29.9.1995 (Annexure P-6) and, therefore, the orders passed by the authorities below are justified.

After hearing counsel for the parties and keeping in view the factual matrix which is not in dispute, the absence of the petitioner from duty for which he was charge sheeted was from 28.7.1983 to 7.8.1983. In reply to the enquiry officer''s findings recorded against him, the petitioner vide his reply dated 19.11.1983 (Annexure P-1) submitted that he had been arrested and falsely implicated by the Rajasthan Police in FIR No. 53 dated 28.7.1983 u/s 9 of Opium Act, Police Station Chandeva Ji District Jaipur. Thereafter also vide representation dated 4.1.1984 (Annexure P-2) whereby he filed reply to the show cause notice proposing imposition of punishment of penalty of dismissal from service, the plea was raised that the absence from duty was beyond his control as he had been kept in detention and the moment he had been released on bail, he reported for duty. However, vide order of dismissal dated 27.1.1984, Superintendent of Police, Jind repelled this ground by recording that no evidence had been produced regarding the fact of arrest of the petitioner and held him guilty of charge of absence by holding that he was incorrigible and unfit for police service. The petitioner raised the plea regarding length of service and placed reliance upon Gurdev Singh Vs. State of Haryana 1976 (2) SLR 442 before the appellate authority which was repelled by placing reliance upon the judgment of this Court in Letters Patent Appeal No. 171 of 1976. The relevant portion of the appellate order dated 11.6.1984 reads as under:-

The appellant has further contended that the punishment awarded to him is unduly harsh and excessive in as much as no finding has been recorded as required under PPR 16.2 by the E.O. and the punishing authority that the charges proved against him amounted to gravest type of misconduct and also because his length of service was not taken into account while passing the impugned order of punishment. It has been averred that the charge regarding habitual absence having remained unproved, the extreme penalty of dismissal is unwarranted. The appellant has relied on the Ruling in case Gurdev Singh Vs. State of Haryana reported as 1976 (2) SLR 442. I have dispassionately considered this point. I am of the view that even if the charge regarding previous absence is discounted, the punishment awarded to the appellant is justified. The High Court ruling cited by the appellant has since been over ruled by a full Bench of the Pb. & Haryana High Court in LPA No. 171 of 1976 and it is no longer necessary to record a positive finding about the degree of gravity of the charges. The charge recording unauthorised absence from duty for a period of 10 days by itself constitutes a misconduct of gravest type for which no punishment short of dismissal, can meet the ends of justice.

I, therefore, find no reasons to interfere with the punishment order passed by the Superintendent of Police, Jind. I accordingly reject this appeal.

A copy of this order shall be supplied to the appellant free of costs.

Thereafter, in revision on 7.1.1986 the petitioner was not successful and respondent No. 4-the Director General of Police, Haryana, Panchkula recorded a finding that he had concealed the fact of arrest and, therefore, he was not worthy of trust.

After hearing counsel for the parties and perusing the record, this Court is of the opinion that the authorities below have not taken into consideration the mandate of the Rule regarding the length of service and, therefore, the said order is liable to be modified into an order of compulsory retirement. This Court in a detailed judgment in Civil Writ Petition No. 702 of 1994-Om Parkash Vs. State of Haryana and others decided on 20.7.2012 examined the provisions of the said Rule and after taking into consideration the judgment of the Apex Court in State of Punjab and Others Vs. Ram Singh Ex. Constable, held that length of service has to be taken into consideration and the claim of the pension when passing the order of dismissal to meet the ends of justice. Reliance had also been placed upon the judgment of the Apex Court in State of Punjab Vs. Piara Singh 2004 (2) RSJ 279 whereby the dismissal order had been converted into order of compulsory retirement since the petitioner has rendered 22 years of service. The Apex Court in State of Punjab and others Vs. Dharam Singh, converted the order of dismissal to the order of compulsory retirement from service and the said view was followed by the Apex Court in Harjit Singh and Another Vs. The State of Punjab and Another, while referring to Rule 16.2 of the PPR. The relevant portion of the judgment in Om Parkash''s case (supra) reads as under:-

A Division Bench of this Court in S.I. Surinder Singh vs. State of Punjab, 2008 (6) SLR 556, also while noticing that the Courts are normally not to interfere in the quantum of punishment inflicted by the employer on its employees, allowed the writ petition after noticing that the petitioner had completed 20 years of service on the date of his dismissal after holding that there is violation of mandatory Rule 16.2 of PPR. Similar view was also taken by another Division Bench in Dhan Singh vs. State of Haryana, 2008 (3) SCT 816, wherein also service of the petitioner who had rendered 11 years and 9 months of service was taken into consideration and the dismissal order which had been upheld by the authorities was set aside and it was directed that the matter should be reconsidered. In Shiv Raj Singh Sidhu Vs. Union of India (UOI) and Others , another Division Bench of this Court set aside the order of dismissal of the petitioner therein and held that punishment of forfeiture of two years of service would be sufficient punishment as the employee has joined as Assistant Sub Inspector on 21.05.1973 and was to retire on 30.11.2006, just six months prior to his dismissal on 18.05.2006.

Accordingly, keeping in view the settled proposition of law and in view of the fact that the petitioner''s length of service has not been taken into consideration by the disciplinary authorities, it would be appropriate that the order of dismissal and the subsequent orders passed in appeal and revision are set aside and the same are converted into an order of compulsory retirement w.e.f. 25.02.1992 when the order of dismissal was passed, in view of the fact that the petitioner had completed almost 19 years of service on the date of his dismissal. The respondents are directed to compute the monetary benefits and release the same to the petitioner within a period of 3 months from the date of receipt of certified copy of the order.

The said issue as noticed above was raised by the petitioner but wrongly distinguished by the authorities on the ground that gravity of the charge was severe. The question of dismissal was not the issue which was being raised and it was only the entitlement of right of pension which the authorities failed to take into consideration and the appellate authority also erred in holding that the petitioner had concealed the fact regarding his arrest. As noticed above in the replies dated 19.11.1993 and 4.1.1984 (Annexures P-1 and P-2), the petitioner has very categorically mentioned that he had been falsely involved in the FIR and arrested by the Rajasthan Police due to which he could not report for duty. Thus, there was a valid ground for the petitioner for not being able to report for duty. The judgment of Gurdev Singh''s case (supra) considered by the Appellate Authority was a case of grave misconduct involving drunken behaviour by a police official and thus would not be applicable to the facts of the present case since it pertains to absence from duty.

The submission of counsel for the State that petitioner was involved in a criminal case under the Opium Act and, therefore, was not liable to be retained in the police force cannot be accepted. Since the petitioner has reached at the age of superannuation the issue is only right of pension. Even otherwise, the petitioner has been given the benefit of doubt and was acquitted by the Sessions Judge, Jaipur vide judgment dated 29.9.1995 and the dismissal was not on this account therefore, the said submission would not carry much weight.

Accordingly, keeping in view the above reasons, the present writ petition is allowed. The order of dismissal dated 27.1.1984 which was upheld in appeal vide order dated 11.6.1984 and in revision vide order dated 7.1.1986 is modified into an order of compulsory retirement with effect from 27.1.1984. The respondents are directed to compute the monetary benefits and release the same to the petitioner within a period of 2 months from the date of receipt of certified copy of the order. In case the said amount is not paid within the said period, the petitioner will be entitled to claim the same with 8% interest from the date of retirement till date of payment. The writ petition is allowed in view of the above said terms.