Rajesh Kumar vs State of Punjab and Others

A.N. Jindal, J.—This appeal has arisen out of the judgment 6.11.2009, vide which the judgment dated 19.12.2006, was reversed and the suit of the appellant/plaintiff (herein referred as the appellant) was dismissed. The appellant, while working as constable, was posted on duty at the residence of Cabinet Minister Sh. Ranjit Singh Behrampura on 30.11.2011, at 1.40 p.m., a quarrel had taken place between the appellant and his co-employee, Constable Wazir Singh. SI Amarjit Singh inquired into the matter and submitted an internal report. Then, after holding regular inquiry, the appellant was dismissed by the Commandant i.e. respondent No. 2, vide order dated 17.4.2002. The appellant in his plaint urged that the inquiry, as held by the Inquiry Officer, was in violation of the principles of natural justice and the provisions of Rule 16.24 of the Punjab Police Rules, 1934 (for brevity ''the Rules'') in as much as none of the statements of the prosecution witnesses were recorded in his presence. He was not provided an opportunity to defend himself by providing him the help of co-employee. The Inquiry Officer arbitrarily held the appellant guilty of the charges levelled against him. The reply submitted by him to the show cause notice was not considered and he was dismissed without affording any personal hearing. It was further urged that no legal or valid summary of allegations or list of witnesses and charge sheet were served upon him nor he was supplied copies of the relevant documents connecting the charge sheet. The allegations as levelled upon him are false. No personal hearing was given to him by the punishing authority. Thus, he has challenged the orders dated 17.4.2002, 16.5.2003 and revisional order dated 22.12.2003.

Upon notice, the defendants appeared and filed the written statement, wherein they took some preliminary objections. On merits, it was, inter-alia, contended that the plaintiff was enrolled as Constable on 8.9.1993. He never performed his duties to the satisfaction of his superiors. He was habitual absentee and was punished so many times. The defendants also gave details of the period of his absence and other charges. During the inquiry, the appellant was found guilty of gross misconduct. Then, after giving him due opportunity of being heard, he was dismissed from service. While denying the violation of principles of natural justice during the inquiry, it was submitted that due procedure was followed and proper opportunity of being heard was given to him. However, while feeling that he would not prove to be a good police official, he was dismissed from service.

On the pleadings of the parties, the trial court framed the following issues:--

Whether the impugned order dated 17.4.2002 is illegal, null and void? OPP

Whether plaintiff is entitled to suit for declaration? OPP

Whether plaintiff is entitled to relief of mandatory injunction as prayed for? OPP

Whether suit is not maintainable in the present form? OPD

Whether plaintiff has no cause of action to file the present suit? OPD

Whether no legal and valid notice was served upon the defendants? OPD

Relief.

Both the parties led evidence in support of their case. After hearing both the parties, the trial court decreed the suit of the appellant, but the first appellate court reversed the judgment and dismissed the suit of the appellant. Hence the present appeal.

Having heard the rival contentions and perused the record, it transpires that no defect was found in the inquiry proceedings, which may have caused prejudice to the appellant. There appears to be no violation of principles of natural justice as alleged. Due opportunity of being heard was given to him. The plaintiff in his affidavit Ex. PW1/A did not point out any such defect in the inquiry and the prejudice which he suffered on account of such defect. He has not stated in his affidavit Ex. PW1/A that inquiry report was not supplied to him. Rather, the appellant has placed on record photo copy of the entire inquiry file which is P.6. He has also placed on record photo copy of the show cause notice dated 20.3.2002, which is part of inquiry file Ex.P.6. A perusal of the show cause notice reveals that it is specifically recorded therein that a copy of the inquiry report was attached thereto.

Prime argument raised by the learned counsel is that the penalty imposed upon him is in violation of Rule 16.24 of the Rules, as the charges levelled against him were (a) on 30.11.2011 he was under the influence of the liquor; (b) under the influence of that liquor, he quarrelled with his co-employee and he ran away after throwing his ammunition and weapon, while threatening his co-employee by pointing gun towards him with live cartridges, but at the time of passing the order of dismissal, besides the charges, his previous record was also taken into consideration without confronting him with the said record, as such, the order of penalty was invalid.

On taking due notice of the aforesaid contentions, it is observed that though the show cause notice did not contain the allegations with regard to the previous record, yet the entries in the service book regarding awarding of penalty were inserted after apprising him of the same. He well knew about the penalties imposed and never challenged the said orders of penalties. Then it cannot be said that he was taken by surprise while the same were taken into consideration particularly when he was already known to such orders. It is settled position that the competent authority was well within jurisdiction to take the previous record into consideration while awarding grave punishment to the incorrigible delinquent. The purpose of taking into consideration the past record of the appellant was to form an opinion with regard to the action proposed to be taken against him. While taking previous record of the appellant, it may be observed that after the appellant came into service on 8.9.1993, his work and conduct was not satisfactory, as he was habitual absentee. Even a case u/s 376B IPC was registered against him. He was issued warnings so many times.

The details of the punishments awarded to him are as under:--

The appellant wants the Court not to take his previous record into consideration. Be that as it may, the penalty imposed upon the appellant commensurates to the conduct of the appellant himself. The police official, who is habitual absentee, addicted to liquor during the duty period, unbothered to take care of the arms and threatening his co-employee, it would be hazardous to keep such person in the disciplined police force.

The Apex Court, while being vigilant of the non-supply of the material in the show cause notice to the delinquent at the time of passing the penalty, observed that it is desirable that the delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of the imposing the punishment if the facts of the case so require.

While dealing with a similar situation, the Apex Court in Union of India (UOI) and Others Vs. Bishamber Das Dogra, , observed as under:--

Admittedly, the respondent employee has not completed the service of six years and had been imposed punishment three times for remaining absent from duty. On the forth occasion when he remained absent for ten days without leave, the disciplinary proceedings were initiated against him. The show cause notice could not be served upon him for the reason that he again deserted the LINE and returned back after fifty days. Therefore, the disciplinary proceedings could not be concluded expeditiously. The respondent submitted the reply to the show cause notice and the material on record reveal that during the pendency of the inquiry he further deserted the LINE for ten days. There is nothing on record to show any explanation for such repeated misconduct or absenteeism. The court/tribunal must keep in mind that such indiscipline is intolerable so far as the disciplined force is concerned.

This point was raised before the appellate authority and it also elaborately discussed the same and did not countenance the argument, while observing as under:--

It may be pointed out here that the Hon''ble Supreme Court of The Govt. of A.P. and Others Vs. Mohd. Taher Ali, Recent Apex Judgments (RAJ.) 59 : (2007) 8 SCC 656 observed that, "there can be no hard and fast rule that merely because the earlier misconduct has not been mentioned in the charge sheet it cannot be taken into consideration by the punishment authority, Consideration of the earlier misconduct is often necessary only to reinforce the opinion of the said authority." In fact his view was expressed as far back as in the year 1963 in India Marine Service Private Ltd. Vs. Their Workmen, and it was held that, "It is true that the last sentence suggests that the past record of Bose has also been token into consideration. But it does not follow from this that that was the effective reason for dismissing him. The Managing Director having arrived at the conclusion that Bose''s services must be terminated in the interest of discipline, he added one sentence to give additional weight to the decision already arrived at. Upon this view, it would follow that the Tribunal was not competent to go behind the finding of the Managing Director and consider for itself the evidence adduced before him. The order of the Tribunal quashing the dismissal of Bose and directing him reinstatement is, therefore, set aside as being contrary to law.

Thus, now examining the order dated 17.4.2002, it is revealed that the appellant did not submit reply to the show cause notice dated 20.3.2002 and could not supply any substantial material to the punishing authority at the time when he was given personal hearing. Consequently, the Inquiry Officer reached the conclusion that the offence committed by the appellant was of so grave nature that he deserved dismissal from service. The dismissal was made on the basis of the charges which stood proved and the past record was used to give weight to the opinion and for mental satisfaction of the punishment authority. His past conduct shows that in addition to the present allegations, he remained absent from duty on 56 occasions and he was charged with the offence of rape also. The appellant has also failed to point out if the inquiry is otherwise in violation of the rules of procedure or that he was prejudiced in any manner.

Resultantly, this Court is of the considered view that the no fault could be found in the judgment passed by the first appellate court. No substantial question of law arises for consideration.

No merits. Dismissed.