State of Haryana and Others vs Rajinder Kumar

Rajan Gupta, J.—Brief factual background of the case is that petitioner was recruited as a constable in Haryana Police on 24.12.1979. During his posting in Police Lines, Kurukshetra he remained absent from duty for following periods:--

i) From 4.9.1993 to 10.9.1993 = 6 days

ii) From 28.9.1993 to 11.10.1993 = 13 days

iii) From 13.10.1993 to 31.10.1993 = 18 days

Due to absence of petitioner for a period of 37 days, inquiry ensued against him. After evaluating the evidence on record, disciplinary authority found that petitioner was guilty of misconduct. Thus, major penalty of dismissal from service was imposed upon him vide order dated 22.11.1994 passed by Superintendent of Police, Kurukshetra. Petitioner filed appeal against the said order before Deputy Inspector General of Police, Ambala but remained unsuccessful. Aggrieved, he preferred CWP No. 16511 of 1997. Same was disposed of on May 26, 2009. Operative part of the order reads thus:

It is, thus, clear that the finding regarding the petitioner having committed gravest misconduct cannot be faulted. However, reading the impugned order against the backdrop of the latest exposition of law (reproduced above), I find that the punishing authority has not considered the question regarding the right of the petitioner''s pension. In the circumstances, this writ petition is allowed, the impugned orders of punishment (Annexure P-3 and P-8) are set aside and the matter is remanded back to the disciplinary authority for taking a fresh decision on the above aspect and pass a fresh order of punishment within a period of three months. However, the order of reinstatement shall remain in abeyance till such fresh consideration and will depend upon the outcome of the same.

State of Haryana preferred present Letters Patent Appeal against the aforesaid order before this Court. Same was, however, earlier dismissed observing that applicability of the judgment in Dhan Singh v. State of Haryana and others, 2009 (1) RSJ 62 : (2009 Lab IC 12 (P & H)) was not disputed by the State before the learned Single Judge. Thus, directions under challenge appeared to be with the consent of State. It was further held as follows:--

The remand of the matter to the appellant-State as made by the learned single Judge would require the State to consider whether the service rendered by the petitioner entitles him to pension and if so, whether despite the said facts the punishment of dismissal would be justified. In view of the nature of the directions issued by the learned Single Judge and further as the same have been so issued with the consent of the appellant-State, we are of the view that present is not a fit case for admission. No prejudice has been caused to the State by the directions issued by the learned single Judge.

The said order has been recalled vide a separate order passed today. The learned State counsel contended that petitioner had no right, whatsoever, to be granted pensionary benefits as he was dismissed from service without completion of qualifying service. He referred to Rule 4.19(a) of Civil Services Rules (Volume II). According to him, in a judgment rendered by the Apex Court in Ghanshyam Dass Relhan Vs. State of Haryana and Others, it has been held that in case an employee does not complete the qualifying service, he would not be entitled to pension on his dismissal or resignation.

Plea of State counsel has, however, been opposed by Mr. Malik, learned senior counsel appearing for respondent. According to him, learned single Judge as well as this court had rightly relied upon judgment reported as Dhan Singh''s case (2009 Lab IC 12 (P & H)) (supra), wherein case of the employee was remanded to disciplinary authority for fresh consideration as he had rendered eleven years of service. Besides, petitioner had rendered almost 15 years of regular service and his absence was not intentional. Alleged misconduct would not come within the ambit of gravest misconduct envisaged by Rule 16.2(1) of Punjab Police Rules. Thus, punishment of dismissal from service is harsh.

We have heard learned counsel for the parties and given careful thought to the facts of the case.

It is not disputed that petitioner remained absent from duty for 37 days on various occasions. As a consequence, he faced regular inquiry and was given adequate opportunity to defend himself. He was asked to submit list of his witnesses. Petitioner, however, submitted in writing that he did not want to file any reply or examine any witness. On the other hand, he admitted the charges levelled against him. Inquiry Officer evaluated the material on record and found petitioner guilty of the allegations. Inquiry report was considered by the disciplinary authority. Petitioner merely submitted that he suffered from fever and cough and was treated at T.B. Hospital, Ambala. Thus, his absence may be treated as leave of the kind due. The authority, however, found that the delinquent official had not placed any oral or documentary evidence on record to prove his contentions. Observing that petitioner was guilty of misconduct having remained absent from duty, it ordered his dismissal from service. The disciplinary authority also observed that being a member of disciplined force, petitioner was expected to maintain strict standards. Laxity in this regard would erode discipline in service and effect maintenance of law and order. The order was unsuccessfully challenged by the petitioner before the appellate authority. The writ petition preferred by petitioner was allowed by the learned single Judge in terms of the order reproduced above.

In the instant appeal filed before us, State of Haryana has relied upon Rule 4.19(a) of CSR (Volume II). The said rule reads as under:--

Resignation from public service, dismissal or removal from it, either under provision (c) to Article 311(2) of the Constitution for over anti-national activities such as sabotage, espionage etc. or for misconduct, insolvency, inefficiency not due to age or failure to pass a prescribed examination, entails forfeiture of past service and no pension shall be granted in the aforesaid circumstances:

Provided that in the cases of those Government employees whose removal of dismissal results from participation in other objectionable activities affecting or endangering the security of the State, such proportionate pension may be granted as may be recommended by the Committee of the Advisers constituted under the Haryana Civil Services (Safe-guarding of National Security) Rules, 1971.

(b) The condition of grant of retiring pension is described in Rule 5.32(a) of CSR (Volume II) which reads as under:--

A Government employee is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 30 years, but a competent authority may permit the pension to be granted in special cases where the qualifying service is not less than 25 years.

A retiring pension is also granted to a Government employee who is required by Government to retire after completing 25 years qualifying service or more and who has not attained the age of 55 years.

(c) .........

A plain reading of the aforesaid rule clearly shows that dismissal or removal from public service for misconduct entails forfeiture of past service and no pension can be granted in such circumstances. In Ghanshyam Dass Relhan Vs. State of Haryana and Others, the Apex Court while referring to said Rule held as follows:--

In our view, Rule 4.19(a) has to be read and understood differently from what has been urged by Mr. Dholakia. The expression ''resignation from public service'' will have to be read disjunctively from ''dismissal or removal from it''. The expression ''resignation from public service'' will not be qualified by the subsequent references relating to anti-national activities. On the other hand, the expression ''dismissal or removal from it'' will be qualified by the said expression which would in both cases entail forfeiture of past service and disqualification so far as payment of pension is concerned. In other words, read disjunctively, resignation simpliciter from public service would entail forfeiture of past service and no pension is to be granted in the aforesaid circumstances.

In our considered view, case of the petitioner squarely falls within the ambit of Rule 4.19(a) aforesaid. Thus, he cannot be said to be entitled to pensionary benefits in view of said Rule. In the judgment in Dhan Singh''s case (2009 Lab IC 12 (P & H)) (supra) relied upon by the learned single Judge, a Division Bench of this court had referred to sub-rule (1) of Rule 16.2 of Punjab Police Rules. As no rule was brought to the notice of the Court disentitling the petitioner to pensionary benefits, the authority was directed to reconsider the question of punishment to be awarded to him and his right to pension in light of 12 years service rendered by him. In our considered view, ratio of said judgment is not applicable to the facts of the instant case. Here charge-sheet was served upon the petitioner for major penalty and inquiry ensued. His misconduct having been proved, dismissal from service was ordered in view of the rules. In the circumstances, judgment of Apex Court in Ghanshyam Dass Relhan Vs. State of Haryana and Others, would be applicable. We, thus, set aside the judgment of learned single Judge and dismiss the writ petition. Appeal is accordingly allowed.