NARINDER SINGH Vs. STATE OF PUNJAB AND OTHERS

JUDGEMENT

(1.) Petitioner was recruited on ad-hoc basis as a Constable in Punjab Armed Police (PAP) on 29.08.1996 on priority basis because of the death of his brother while on duty, who was also a Constable. While he was posted at District Jail, Hoshiarpur, he was found absent on 21.05.2009 without permission/leave and an entry in the register at Rapat No. 8 at 7.30 P.M. on 21.05.2009 was recorded to this effect. He remained absent for 40 days and 22 hours and thereafter rejoined duty and entry to this effect i.e. Rapat No. 8 dated 01.07.2009 was entered at the District Jail, Hoshiarpur in the Roznamcha. Commandant of 80th Battalion, PAP Jalandhar, vide order dated 06.07.2009, appointed the Deputy Superintendent of Police as the Enquiry Officer to conduct enquiry against the petitioner. On conclusion of the enquiry, report was submitted by the Enquiry Officer returning the finding that charges against the petitioner stood proved. On the basis of the report of the Enquiry Officer, to which punishing authority prima-facie concurred with, a show cause notice dated 15.09.2009 was issued proposing the punishment of dismissal from service. Liberty was granted to the petitioner to file reply within a period of 10 days. Petitioner submitted his written reply to the notice within the stipulated period but did not come present for personal hearing. Another notice dated 19.10.2009 was served on the petitioner through his wife on 21.10.2009 giving him another opportunity to appear in person. He appeared before the Commandant 80th Battalion, PAP Jalandhar (punishing authority) in person on 26.10.2009 and submitted that he had fallen very ill and could not come present on duty. He requested to convert the period of his absence to leave and expressed his regret for absence from duty. As the petitioner had not submitted any evidence in support of his illness in the form of medical certificate or prescription from the doctor which would suggest that the doctor had recommended medical rest to him, the explanation, as submitted by the petitioner, was not accepted, thus, holding the petitioner guilty of the misconduct of the absence from duty. On perusing and considering his old service record, according to which, after his recruitment on 29.08.1996 as Constable, his 12 annual increments had been forfeited for the reason of his absence from duty on different occasions. The total period of absence came to 1181 days, which was treated as non-duty period. Four times the punishment of condemnation and 7 days punishment of drill was awarded to him. He had earlier also been dismissed from service for absence from duty but was reinstated, on an appeal preferred by him when he gave an undertaking to improve his conduct. Keeping in view the findings recorded by the Enquiry Officer, which was accepted by the punishing authority and the earlier bad service record of the petitioner, a conclusion was drawn that the petitioner was a habitual absentee and punishment of dismissal from service was imposed upon the petitioner vide order dated 30.10.2009 (Annexure P-1) by the Commandant 80th Battalion, PAP, Jalandhar Cantt.-respondent No. 2.

(2.) Against this order of dismissal, petitioner preferred an appeal to the Deputy Inspector General of Police Administration, PAP, Jalandhar Cantt.-respondent No. 3, which appeal was dismissed vide order dated 17.02.2010. Further appeal/mercy petition filed before the Inspector General of Police, PAP, Jalandhar Cantt.-respondent No. 4 was dismissed on 13.05.2010 (Annexure P-3). Revision-cum-Mercy Petition preferred to the Director General of Police, Armed Battalion, Jalandhar Cantt. was rejected on 13.10.2010 (Annexure P-4). Further appeal to the Director General of Police-respondent No. 5 was again dismissed on 12.04.2011 (Annexure P-6) and similarly, a mercy petition before the Secretary, Government of Punjab, Department of Home was rejected vide order dated 19.12.2011 (Annexure P-7). All these authorities, after going through the records, have come to a conclusion that despite various opportunities granted to the petitioner to improve his conduct, he has not shown any improvement and, therefore, being a habitual absentee and there being no further scope for improvement, petitioner could not be retained in a disciplined police force and the order of dismissal passed by the punishing authority was fully justified and in accordance with law. These orders have been challenged by the petitioner through the present writ petition.

(3.) It is the contention of the counsel for the petitioner that the petitioner suddenly fell ill and his position being very critical, he was unable to resume his duty and, therefore, applied for sanction of leave. He could not come present for 40 days and 22 hours, which cannot be said to be an absence of such a dimension which would call for the extreme punishment of dismissal from service. The departmental enquiry was not conducted as per the Punjab Police Rules, 1934 as principles of natural justice was not complied with. The petitioner has not been allowed to submit his defence in the enquiry proceedings before the Enquiry Officer as he has not been given an opportunity to cross-examine the witnesses of the department and his full evidence was not properly recorded. He contends that the punishing authority has taken into consideration the entire service record of the petitioner while imposing punishment of dismissal without giving the petitioner any opportunity to rebut the earlier record of his service as neither any of the punishment orders and other records were supplied to the petitioner nor any show cause notice was issued in this regard prior to taking the earlier service record into consideration. He contends that this action of the respondents is not sustainable in the light of the judgment of this Court in State of Punjab and others v. Jaspinder Singh, 2008 3 SCT 262. His further submission is that absence of 40 days and 22 hours cannot be taken as serious and grave mis-conduct which could be categorized as a gravest act of mis-conduct inviting punishment of dismissal from service. In support of this contention, reliance has been placed upon a Division Bench judgment of this Court in Dhan Singh v. State of Haryana and others, 2008 3 SCT 816. Accordingly, prayer has been made for setting aside the impugned orders and issuing directions to the respondents to reinstate the petitioner with all consequential benefits.