LAWS(P&H)-1994-3-116

MAHIPAT Vs. STATE OF HARYANA

Decided On March 17, 1994
MAHIPAT Appellant
V/S
STATE OF HARYANA Respondents

JUDGEMENT

(1.) The petitioner joined the police service on 2.6.1982. He applied for two days' causal leave but reported back on duty after a lapse of 83 days. Disciplinary departmental proceedings for absence from duty without leave were initiated. On 8,64987, the petitioner was put under suspension. The statement of allegations of alleged misconduct as well as the statement of witnesses was served on the petitioner in accordance with Rule 16.24(l)(i) of the Punjab Police Rules, 1934 (hereinafter referred to as 'the Rules'). In defence, the petitioner put up the version that as he was sick, consequently, he was unable to join duty earlier.

(2.) The Inquiry Officer found the defence of the petitioner to be false and further found that the petitioner has absented from duty without leave. Respondent No. 4 the Punishing Authority on the report of the Inquiry Officer and reply to the show cause notice refuted the case put up by the petitioner and ordered the dismissal of the petitioner from service on 1.12.1987 holding that the defaulter has acted in an indisciplined manner and is incorrigible as he absented from during enquiry also. After going through various pleas, the legal advice, the total absence of 83 days coupled with the fact that the petitioner was habitual absentee from duty on one pretext or the other respondent No. 2 rejected the appeal of the petitioner vide order dated 20.4.1988 after affirming the findings of the Inquiry Officer and after taking note of the earlier recorded six times punishment for absence from duty. The mercy petition met the same fate. The dismissal of the petitioner was assailed through this writ petition on the grounds inter aha that; (i) the impugned order was passed for extraneous consideration i.e. the Appellate Authority took into consideration the legal advice which was neither put to the petitioner nor any explanation was taken from him. Further the earlier absence from duty, awarding of six times punishment for absence from duty and absence from duty during the inquiry was taken into consideration while ordering the dismissal of the petitioner without taking his explanation (ii) the order of dismissal is violative of principles of natural justice as well as Rule 16.24(1)(vii). The delinquent-petitioner was not provided reasonable opportunity to defend himself to present his case. No witnesses were examined after the framing the charge-sheet. The order of the Appellate Authority is not a speaking order and was passed without granting an opportunity of hearing to the petitioner; (iii) the impugned order was passed without examining the defence witnesses. It was incumbent after a list of witnesses was submitted to him. Non-compliance of the mandatory provisions of Rule 16.24 and holding that it was the responsibility of the delinquent to produce his defence is in violation of Rule 16.24(v); (iv) Rule 16.29 provides the Appellate Authority in the case of the petitioner to be a D.I.G. The Appellate Authority could not be appointed by the executive fiat contrary to the rules. Herein, the order of dismissal was passed by the Director of State Crime Records Bureau, Madhuban, who was authorised to hear the appeal by the executive order as there was no D.I.G. upto April, 1988. Thus, the order of the Appellate Authority is without jurisdiction; (v) the impugned order is violative of Rule 16.2 as the Punishing Authority did not take into consideration the length of service etc; and (vi) absence from duty i.e. over stay of sanctioned leave does not amount to gross misconduct for which the petitioner could have been dismissed from service.

(3.) Learned counsel for the petitioner, in order to support his contentions relied upon C.W.P. No. 16889 of 1992 (Ajit Singh vs. State of Haryana), decided by a Division Bench of this Court vide order dated 2.6.1993, Ex. HC Munshi Ram vs. The State of Haryana and others, 1991 2 RSJ 345, State of Haryana through Collector, Hissar vs. Lakhan Lal, 1991 100 PunLR 595, The State of Punjab vs. Parkash Chand Constable, 1992 1 SLR 174, Darshan Singh vs. The State of Punjab and another, 1991 4 SLR 102and State of Haryana through Collector Hissar and another vs. Lachman Singh, 1992 2 RSJ 398.