State of Punjab vs Charanjit Singh

M.L. Singhal, J.—Charanjit Singh was appointed as constable on 1.5.70 on the rolls of Patiala Police by SSP Patiala. He was transferred from District Patiala to District Sangrur. Thereafter, he was promoted as Head Constable and posted to District Ropar. He was placed under suspension. During the period of suspension, he went to Barnala Court in connection with his evidence. He attended the court there. He came to know that his wife was seriously ill. He went to his village and found his wife seriously ill. He applied for the grant of leave on the ground of illness of his wife. He received no reply. He went on sending applications for grant of leave. No intimation was given to him accepting or rejecting his applications for leave. He reported back on 3.12.84 vide DDK No. 27 at 1-10 P.M. He could not report for duty earlier in the general roll call held on 30.11.84 as he had reached late after attending the office of SP Ropar. He was proceeded against departmentally on account of wilful absence for 52 days. Inquiry was conducted against him. After inquiry, show cause notice was given to him to which he gave reply. Vide order No. 6- 16/85/5064-67/E dated 15.4.85 passed by SP Ropar, he was dismissed from service. He went in appeal, which was dismissed by DIG Patiala Range, Patiala. He went in revision against the order of dismissal to the Director General-cum-Inspector General of Police which was dismissed on 4.12.85. In revision, he challenged the order of dismissal passed by SP Roper and DIG Patiala Range, Patiala on grounds inter alia that he was under suspension and when he was under suspension he was not supposed to have been put on the discharge of any duty and, therefore, he could not be dismissed on the ground of absence from duty. Inquiry was conducted by an Inspector, Police, who was an upper subordinate and not an officer within the meaning of Punjab Police Rules and, therefore, inquiry conducted by such an officer was illegal. While passing the order of dismissal, SP condoned the period of absence as leave with pay. If that was so, the period of absence stood condoned and after the period of absence was condoned, he could not have been treated as absent and dismissed on the ground of charge of absence. No personal hearing was given to him as envisaged in Rule 16.24(1)(9) of the Punjab Police Rules. While dismissing him from service, no regard was had to his length of service so that instead of dismissing him from service, he could be retired com-pulsorily and thus enabled to earn pension. Further the SP did not apply his mind whether absence was an act involving the gravest act of misconduct on his part and he was incorrigible rendering him completely unfit for police service. On these allegations, Charanjit Singh challenged his dismissal from service brought about by the order of SP Roper endorsed by DIG and Director General of Police-cum-Inspector General of Police, Punjab Chandigarh in appeal and revision respectively.

Defendant-State of Punjab contested the suit of the plaintiff urging that his dismissal was quite in order brought about after an inquiry and full application of mind and was in tune with the law and procedure governing the conduct of such inquiries. It was denied that he applied for leave. There was no question of sending any reply to him. His reply to show cause notice was fully considered. Personal hearing was also given to him. During suspension, plaintiff was required to attend P.T./parade and roll calls.

On the pleadings of the parties, the following issues were framed :-

Whether notice u/s 80 CPC served on the defendants is invalid ? OPD

Whether the suii is not properly valued for the purpose of court fee and jurisdiction as alleged ? OPD

Whether this court has territorial jurisdiction to try the present suit ? OPD.

Whether the plaintiff has got cause of action to file the present suit ? OPP

Whether the plaintiff is entitled to the declaration prayed for ? OPP

Relief.

Vide order dated 3.12.1990, Sub Judge 1st Class, Patiala decreed the plaintiffs suit and held his dismissal form service as illegal, null and void having no effect on his right to continue in service with all arrears of salary, allowances etc. with interest at the rate of 12% per cent per annum from the date of suit to the date of decree and 6% per annum from the date of decree onwards till realization as if order dismissing him from service had never been passed, in view of his findings, that merely because the plaintiff happened to be absent time and again was not an act involving incorrigibilily and the gravest act of misconduct on his part, in this case, he was not shown to have been absent on earlier occasions. It was also found that during the period, he was absent, he could not be taken to have been absent during the discharge of some duty as he was not put on any duty. It was also found that when in the impugned order itself SP ordered the treatment of the period of absence as leave with pay, absence stood condoned and absence could not be viewed as the basis of any charge. It was also found that the punishing authority did not apply mind to this aspect of the case whether absence was the gravest act of misconduct on his part involving incorrigibility rendering him completely unfit for police service. It was also found that before passing order of dismissal punishing authority should have applied mind to the length of his service so as to consider his suitability for being compulsorily retired.

Not satisfied with the order of Sub Judge 1st Class, Patiala dated 31.2.90, State of Punjab went in appeal. Appeal was dismissed by Addl. amending District Judge, Patiaia vide order dated 20.8.93.

Still not satisfied, State of Punjab has come up in further appeal to this Court.

I have heard the learned DAG Punjab and learned counsel for the respondent.

Learned DAG Punjab submitted that respondent- plaintiff was habitually absent. He had been punished 12 times for absence from duty earlier. He was a member of the disciplined force. As member of the disciplined force he could not afford to be absent time and again. His absence time and again shows that he was incorrigible. Had he been corrigible, he would have corrected himself and refrained from being absent after earlier absences from duty. Absence from duty for the 13th time was the gravest act of misconduct on his part and it was rightly viewed as the gravest act of misconduct on his part proving incorrigibility and he was rightly dismissed from service by the authorities.

Learned counsel for the plaintiff-respondent, on the other hand, submitted that there was no charge against him that he was habitually absent and that it was his absence from duty for the 13th time. It was also submitted that this time, he could not be viewed as absent from duty as he was under suspension. When he was under suspension, he could not be put to any duty and also he was not put on any duty. It was also submitted that the plaintiff could not be required to be present in the police lines and to attend the PT parade and roll call for an indefinite period under Rule 16.21 of Punjab Police Rules as it amounts to punishment u/s 7(b) of the Punjab Police Act. It was held in Ramesh chander v. Haryana State Electricity Board, 1986(3) SLR I, by a Division Bench of this Court that "after the suspension of the relationship of master and servant, the suspended employee cannot be asked to perform any official duties or to appear in and to attend any office daily." In Chittranjan v. I.G. of Police, 1979(2) SLR 194, Chittranjan was employed in the police force of the State of Calcutta amenable to the rule similar to rule 16.21 of the Punjab Police Rules to which the Punjab Police is subject, he was asked to attend the roll call during the period of suspension. Hon''ble Calcutta High Court held that he could not have been directed to attend the roll call when he was under suspension. In my opinion, the respondent-plaintiff could not have been viewed as absent from duty as he was under suspension. No duty could be assigned to him to be performed nor any duty could be assigned to a suspended employee.

It was submitted by the learned counsel for the respondent that there was no charge against him that he was habitually absent and that he had been punished on twelve occasions earlier and this was the 13th occasion when he was absent and as such it was a single act of absence which could not be viewed as misconduct. Suffice it to say, single act of absence from duty could be viewed as misconduct in the case of plaintiff who was a member of the disciplined force. It was also submitted that he had put in 15 years of service. SP did not consider his suitability for compulsory retirement. He ought to have considered whether dismissal alone would serve the purpose or he should be retired com-pulsorily and enabled to earn pension as charge was that of absence only. It was held in Ex-Const. Ranbir Singh v. State of Haryana, 1999(2) SCT 58, that the petitioner had put in more than 17 years of service as constable. In view of specific provision contained in Rule 16.2 of Punjab Police Rules, Punishment of compulsory retirement will meet ends of justice. There was charge of absence from duty against him for 344 days. Reliance was also placed on State of Punjab v. Parkash Chand, 1992(1) SCT 123 and State of U.P. and others Vs. Ashok Kumar Singh and anothers, . In State of U.P. and others case (supra), the Hon''ble Supreme Court held that "the High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without |eave on several occasions, we are unable to appreciate the High Court''s observation that his absence from duty would not amount to such a grave charge." Absence from duty was thus misconduct on his part but in view of the fact that plaintiff had put in 15 years of service, SP should have thought of ordering his compulsory retirement from service thus enabling him to earn pension. In this case, however, plaintiff-respondent could not be viewed as absent from duty as he had not been put to any duty. He was under suspension. Furthermore, his absence from duty was condoned by the SP who ordered the treatment of his absence from duty as leave with pay. If that was so, the charge of absence from duty if there was any stood condoned. In The State of Punjab and Others Vs. Bakshish Singh, the finding of Additional District Judge was as follows :-

"In view of the above brief discussion, I am of the considered opinion that once period of absence is treated as leave of the kind whatsoever, the fact that the delinquent remained absent from duty cannot be sustained after the person has been treated on leave of whatsoever kind it may be. Thus, the findings of the learned lower Court upon this matter are hereby confirmed."

This view of the Additional District Judge was approved by the Hon''ble Supreme Court.

For the reasons given above, I am of the view that no fault can be found with the decree passed by Additional District Judge, Patiala affirming that of Sub Judge 1st Class, Patiala. This RSA accordingly fails and is dismissed with no order as to costs.

Appeal dismissed