Karnail Singh Ex-Constable vs The State of Punjab and Another

R.K. Nehru, J.—The petitioner, an ex-Constable in the service of Punjab Police, has challenged the order of the Senior Superintendent of Police, Ferozepur contained in Endst. No. 671- 74/S.T/H dated August 18, 1987, dismissing him from service and the appellate order of the Deputy Inspector General of Police, Ferozepur Range, Ferozepur Cantt. dated December 30, 1987, affirming the order of the Senior Superintendent of Police, in this petition under Articles 226/227 of the Constitution of India.

The facts:-

The petitioner was suspended from service on May 26, 1986, re-instated on August 22, 1986, but did not report for duty till March 2, 1987. He remained absent from duty for 5 months and 5 days. The Senior Superintendent of Police, Ferozepur Range, Ferozepur Cantt., who is the appointing authority, ordered departmental enquiry against the petitioner for remaining absent from duty without leave. The Enquiry Officer submitted his report saying that the charge of remaining absent from duty stood proved and the appointing authority concurred with his report. He issued a show cause notice to the petitioner as to why he should not be removed from service. The show cause notice could not be served upon the petitioner since he remained absent from his residence continuously for a long time. On verification, it was found that the petitioner was residing with his father-in-law. The show cause notice was accordingly sent to him on that address. He was not available at the residence of his father-n-law. Notice was served upon the brother-in-law of the petitioner in the presence of the Members of the Gram Panchayat. After receipt of the show cause notice, the petitioner did not submit any reply. Shri R.S. Chalia, Senior Superintendent of Police Ferozepur Range, Ferozepur Cantt., who had issued the show cause notice to the petitioner was transferred from Ferozepur and his successor in office ordered that a fresh show cause notice be issued to the petitioner. The petitioner was not found at his residential address. The show cause notice was served up6n his wife in the presence of respectables of the village. The petitioner did not think it desirable to submit any reply to the show cause notice, which was served upon his wife. The appointing authority concurring with the report of the Enquiry Officer held thus:- "According to evidence on the file the charges of absence are proved against the offender, besides this, the offender is found addict of keeping himself absent. By remaining absent for such a long period, without any reasonable excuse, without information or sanction of leave, has exhibited remiss, irresponsibility and indiscipline. Police force is a disciplined force. This adversely affects the other servants and thus this fault of the offender cannot be tolerated at any costs and I do not think it proper to take a lenient view with the offender. Therefore, I pass an order of dismissal of the offender from the Police service from today afternoon. The period of absence (5 months and 5 days) is considered leave without pay."

Aggrieved against the order the dismissal from service passed by the Senior Superintendent of Police, the petitioner filed statutory appeal before the Deputy Inspector General of Police, Ferozepur Range, Ferozepur. The appellate authority, on examination of the service record of the petitioner, the enquiry report and the order of the appointing authority, came to the conclusion that the misconduct of the petitioner stood established. It concluded thus:-

"In view of the aforesaid discussion, I am of the considered opinion that the misconduct of the appellant stands established from evidence brought on record. I also find from service record of the appellant that he was previously awarded 8 punishments on different occasions and as such he is a habitual absentee. Police is a disciplined organisation and such long absence from duty cannot be tolerated. Hence I do not see anything (sic) order. The appeal of Ex-Constable Karnail Singh No. 1119/FZR is rejected being devoid of force and the impugned order is upheld."

These orders have been challenged in this writ petition.

When the writ petition came up for motion hearing before a Bench of this Court, the petitioner''s counsel relied upon a Single Bench decision of this court reported as State of Punjab v. Chanan Singh,1 1982(2) C.L.J. 21. Presumably the Bench did not agree with the conclusions arrived at by the learned Single Judge in the reported judgment and they directed that the writ petition be heard by a Division Bench. It is how this writ petition has been placed before us.

In Chanan Singh case (supra), Chanan Singh, a Constable in the Punjab Police was dismissed from service, after enquiry, for remaining absent from duty. He filed a suit for declaration in the civil Court challenging the order of dismissal on the ground that it was void. His plea was that he had not remained absent from duty but had overstayed on leave. The trial Court dismissed the suit holding that the order of dismissal from service was valid. The first appellate Court differed with the conclusions arrived at by the trial Judge and held that the order of termination was bad as it was not a speaking order and the Punishing Authority did not advert to Rule 16.2(1) of the Punjab Police Rules, 1934 before passing the order of termination; that this rule provides that the order of dismissal from service could be passed only for the gravest act of misconduct. Remaining absent from duty without leave was not found to be the gravest act of misconduct for which the order of dismissal from service could be passed. The State of Punjab, aggrieved against the order passed by the first appellate Court, challenged the same in regular second appeal in this Court. The learned Single Judge in Paras 5 and 6 of the judgment observed thus:-

"5. The punishing authority came to the conclusion, after show cause notice and enquiry, that the respondent remained absent on expiry of his leave. In my opinion, it does not constitute gravest act of misconduct inasmuch as it is not a case where a person remained absent from duty, it may be a case of over-stay on leave and in order to constitute the gravest act of misconduct resulting in the punishment of removal something more than this is required. Admittedly the "judgment cited by the learned counsel for the appellant reported in Gurdev Singh''s (supra) the Hon''ble Division Bench came to the conclusion on facts that the person was found in a drunken condition on duty and the Enquiry Officer after going into the evidence came to the conclusion in a 17 pages order that he was guilty of gravest act of misconduct.

In the present case, Exhibit P/1, order of dismissal, is a non-speaking order. From this order, it cannot be inferred at all that the punishing authority was alive to the inbuilt ingredients in the Rule 16.2(1) of the Punjab Police Rules for awarding punishment of dismissal. Undisputedly the Court should not interfere with regard to the quantum of punishment with respect to a person or Police Officer found guilty of dereliction of duty. The Courts have jurisdiction only to interfere where the punishment or the action has been taken unilaterally or arbitrarily. In view of my observation that the punishing authority was not alive to the ingredients, i.e. while awarding the punishment in terms of Rule 16.2(1) of the Punjab Police Rules, it has to be satisfied that the act attributed is one of the gravest acts of misconduct resulting in his becoming complete unfit for police service. While making such an assessment or awarding punishment of dismissal, the punishing authority should also keep in view the length of service of the delinquent and his claim to pension. Here admittedly, none of these things was taken into consideration. A reading of Exhibit P/1 makes it obvious that punishing authority was not alive to the situation at all."

A reading of these paragraphs indicates that the learned Single Judge, while interpreting Rule 16.2(1) of the Police Rules felt that the order of dismissal from service did not fall within the ambit of the rule inasmuch as the punishing authority did not take into consideration its provisions. According to the learned Judge, remaining absent from duty without leave is the gravest act of misconduct, but over-staying leave is not, but before passing the order of dismissal from service, previous length of service and entitlement for pension, etc. have to be taken note of.

The interpretation placed by the learned Single Judge on Rule 16.2(1) of the Police Rules has not been approved by the apex Court in State of Punjab and Others Vs. Ram Singh Ex. Constable, . In that case, the respondent had been dismissed from service by the Senior Superintendent of Police, Ropar on the ground that while he was working as Gunman of the Deputy Commissioner, Ropar, he was found heavily drunk in the evening of September 6, 1979 and was roaming at the bus stand wearing the service revolver. He was brought to Police Station, the service revolver was deposited in the malkhana and he was sent to Civil Hospital, Ropar for medical examination. The doctor declared him as heavily drunk. He also had a quarrel with the doctor on duty and abused him. The Enquiry Officer held that the charge levelled against him stood proved. The appointing authority passed the order of dismissal from service. The order of dismissal was affirmed in departmental appeal. The respondent challenged the order of dismissal in civil suit. The trial Court decreed the suit. The judgment and decree of the trial Court was affirmed in appeal. The Civil Courts found that the order of dismissal was vitiated by not giving reasonable opportunity due to non-supply of the documents and the Inquiry Officer had cross- examined the witnesses produced by the delinquent official. It was also held that the disciplinary authority did not keep in view the meandatory provisions of Rule 16.2(1) of the Rules. In second appeal, the High Court found that the deliquent official was supplied with the required documents and that the enquiry was not vitiated by cross-examination of the witnesses by the Enquiry Officer. However, the High Court felt that the order of dismissal could be passed only for the gravest act of misconduct. According to the learned Judge, taking drink is a single act and is not a gravest act of misconduct. Thus, the order of dismissal was not envisaged by Rule 16.2(1) of the Rules. The judgment of the learned Single Judge of this Court was challenged in the apex Court. The only question before the apex Court was whether the conduct of the respondent was the gravest misconduct within the meaning of Rule 16.2(1) of the Rules, which reads thus:-

"Dismissal shall be awarded only for the gravest acts of misconduct or as the comulative 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."

While interpreting this rule, the apex Court held that this rule consits of two parts. The first part is referable to gravest acts of misconduct which entails awarding an order of dismissal. The second part of the rule connotes the comulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and that length of service of the offender and his claim for pension shall be taken into account in an appropriate case. It will be appropriate to quote in extenso the conclusions arrived at by the apex Court in paragraphs 6, 7 and 8 of the judgment while interpreting the provisions of Rule 16.2(1):-

"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 the 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, that too when it impinges 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 "act" would include singular "act" as well. It is not 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 that put in 29 years of continuous length of service and had unblemished record; in 30th year he commits defalcation of public money or fabricates false records to conceal misappropriation. He only committed once. Does it mean that he should not be inflicted with punishment of dismissal but be allowed to continue in service for the 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.

The second part of the rule connotes the comulative effect of continued misconduct proving incorrigibility and complete unfitness of 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 illogical. Second part is referable to a misconduct of minor in character which does not by itself warrant an order of dismissal but due to continued acts of misconduct would have insidious comulative effect on service morale 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 complete unfit to remain in service than to maintain discipline in the service, "instead of dismissing the delinquent officer, a lesser punishment of compulsory retirement or demotion to 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 is habitually absent from duty when required. Despite giving an opportunity to reform himself he continues to emain 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 be read as ''and''. It must be disjunctive and independent. The common link that connects both clauses is ''the gravest act/acts of misconduct''.

The next question is whether the single act of heavy drinking of alcohol by the respondent while on duty is a gravest misconduct. We have absolutely no doubt that the respondent, being a gunman having service revolver in his possession, it is obvious that he was on duty; while on duty he drunk alcohol heavily and became uncontrollable. Taking to drink by itself may not be a misconduct. Out of office hours one may take to drink and remain in the house. But being on duty, the disciplined service like police service, the personnel shall maintain discipline and shall not resort to drink or be in a drunken state while on duty. The fact is that the respondent after having had heavy drink, was seen roaming or wandering in the market with service revolver. When he was sent to the doctor for medical examination he abused the medical officer on duty which shows his depravity or delinquency due to his drinking habit. Thus it would constitute gravest misconduct warranting dismissal from service. The authorities, therefore, were justified in imposing the penalty of dismissal. The Courts below failed to properly appreciate the legal incidence and the effect of the rules."

The word ''misconduct'' appearing in Rule 16.2(1) of the Rules was found to be incapable of any precise definition. However, in the context in which the word ''misconduct'' appears in the rule, the apex Court found that its reflection '' receives its connotation from the context in which it is used and it observed thus:-

"Thus, it could be seen that the word ''misconduct'' though not capable of precise definition, its reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."

The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effects in the maintenance of law and order. The interpretation placed by the learned Single Judge in Chanan Singh case on Rule 16.2(1) of the Rules has not been approved by the apex Court in Ram Singh case (supra). Resultantly, with respect to the learned Single Judge, we have no option but to overrule the same.

The petitioner habitually remained absent from duty. He did not reform himself. The record which has been alluded to by the appellate authority reveals that on previous occasions too the petitioner was awarded punishment on eight different occasions for remaining absent from duty. His absence from duty continuously for 5 months and 5 days was not an isolated Act. There had been repeated acts of remaining absent from duty for which he has been awarded punishment and the past record was taken into account while awarding punishment of dismissal from service. On the facts of the instant case, we do not find that the action of the respondents suffers from any infirmity.

For the reasons stated above, the writ petition fails and is dismissed, but with no order as to costs.