Ex. HC Ra v. State of Haryana & Ors.

Present: Mr. Deepak Balyan, Advocate for the petitioner. Mr. Sunil Nehra, Sr.D.A.G., Haryana, for the State. ***** RANJIT SINGH, J. The petitioner, who was serving as a Head Constable in Haryana Police, has filed this writ petition for quashing orders dated

15.4.2004 (Annexure P-1), 18.8.2004 (Annexure P-2) and

14.1.2005(Annexure P-3) respectively. It is also prayed that the direction be issued to the respondents to reinstate the petitioner with all consequential benefits. Having joined the Police Department on

24.3.1977, the petitioner passed B-I test in October 1990 and was promoted as Head Constable. He claims to have received 48 commendation certificates and was not awarded any major punishment in his long service of 25 years and 11 months. On

15.3.2004, an inquiry was conducted and an order dismissing the Civil Writ Petition No.3225 of 2010 -2- petitioner was passed without taking into account the length of service and his right to pension. It is urged that his length of service too was required to be taken into consideration in terms of Rule 16.2 of Punjab Police Rules,1934 (for short 'the Rules') while passing the order of dismissal. The petitioner filed an appeal against this order, which was rejected on 18.8.2004. Revision against this order was also dismissed on 14.1.2005. The petitioner has now filed this writ petition to challenge the said orders in February, 2010. The State has filed written statement pointing out that the petitioner is habitual of committing misconduct and was awarded the following punishments:- (i) For showing negligency in the investigation of case FIR No.189/93 of PS Sampla he was awarded punishment of warning on 55673-77 dated 9.12.94. (ii) For conducting improper investigation of case FIR No.225/93 PS Sampla he was advised vide order No.55212-21 dated 5.12.94. (iii) Similarly for showing negligency in the investigation of case FIR No.191/93 warning was issued on 6.12.94. (iv) For showing negligency in the investigation of case FIR No.189/93 warning was issued vide order dated 30.11.94. (v) For having been arrested in case FIR Civil Writ Petition No.3225 of 2010 -3- No.169/98 U/S 7/13 PC ACT PS Beri he was placed under suspension. However, he was acquitted by the Ld. Court. (vi) For remaining absent from duty 15 days punishment drill was awarded to him vide order dated 19.04.1975. (vii) For conducting improper investigation in case FIR No.164/93 U/S 279/336 IPC warning was issued him in 1994. (viii) Punishment of censure was awarded to him in 1998 for conducting improper investigation of case FIR No.251/97. (ix) For remaining absent from punishment of censure was awarded to him vide order dated

12.01.2000. (x) For remaining willful absent from 07.02.2003 to

15.04.2004 he was dismissed from service.” As far as the last allegation noted above, which has led to his dismissal, the petitioner has remained willfully absent from

7.2.2003 for which he was dismissed from service after coming on

15.4.2004. As per the reply, the petitioner did not submit any telegram/application for leave nor a medical certificate and the story now projected by him is stated to be concocted one. Accordingly, prayer is made for dismissing the writ petition. Learned counsel for the petitioner has made single fold submissions before me. As per the counsel, the punishing authority Civil Writ Petition No.3225 of 2010 -4- did not take into consideration the long length of service of the petitioner, which is the requirement under Section 16.2 of the Rules. Reference is made to the order of dismissal (Annexure P-1) to urge that the length of service of the petitioner was not taken into consideration while directing his dismissal from service. Since the order is not under challenge on any other ground except this, the same requires consideration in the light of law laid down in this regard. Heavy reliance is placed upon Dhan Singh Versus State of Haryana & others, 2009 (1) RSJ 62. In this case, this Court has observed that the term 'gravest misconduct' has to be confined to the definition and acts as specified from Clauses (i) to (vii) of the Punjab Police Rules,1934, in the explanation. It is further observed that misconduct for remaining absent on two occasions for 22 days and 100 days would make police officer incorrigible and unfit for police service. Considering his length of service, which was 11 years and 9 months, it is observed that the right of pension of the petitioner was, therefore, inherent under Rule 16.2, which could not be ignored. Authorities having failed to adhere to the Rule while awarding punishment render the impugned order of punishment illegal and unwarranted. Direction was issued to the the authorities to reconsider the question of punishment to be awarded keeping in view the service rendered by the petitioner therein. On the other hand Mr. Nehra would point out that the order of dismissal had acquired finality in the year 2005. The petitioner has remained silent for over 5 years and has filed writ Civil Writ Petition No.3225 of 2010 -5- petition in the year 2010. As per the counsel, there is no reason for him to explain this delay, which is enough to decline the relief to the petitioner at this stage. Otherwise also, counsel draws my attention to a view taken by Varinder Kumar Versus State of Haryana (P&H), 2010 (2) SCT 50, where misconduct on account of prolonged absence was termed as a gravest act of misconduct and order of dismissal was held justified. I have considered the submissions made by counsel for the parties. In my considered opinion, this is not a case, where the consideration of long length of service was completely ignored by the punishing authority. After making reference to the facts in detail and the inquiry held, the punishing authority formed a view that the petitioner had been given sufficient opportunity to join his duty and to appear before the inquiry officer, but he failed to do so. Accordingly, the authority formed a view that he was not interested in serving the department any more. It was so viewed that long absence from duty could not be condoned and so the punishment of dismissal was awarded. While doing so, the punishing authority took note of the fact that this punishment would be commensurate to the gravest misconduct exhibited by the petitioner. The fact that the long absence was gravest act of misconduct and that the punishment of dismissal was considered commensurate would give clear indication that the punishing authority was conscious of the gravity of the misconduct committed by the petitioner and so also of his long service. Taking totality of the facts, the impugned orders were passed. This is not such a case, where it can be stated that Civil Writ Petition No.3225 of 2010 -6- the consideration which is relevant under Section 16.2 of the Rules, was not kept in view. I am, thus, not inclined to interfere in the impugned orders, especially so when the petitioner has made approach after lapse of over 5 years. The writ petition is, therefore, dismissed. December 3, 2010 monika I ( RANJIT SINGH ) JUDGE