SATPAL SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) Invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner filed this Writ Petition seeking issuance of a writ of certiorari to quash the orders which are Annexed as P. 7, P. 9 and P. 11.

(2.) The original petitioner Satpal Singh who died during the pendency of this writ petition joined as a constable in the Police Department of Haryana on September 1, 1974. He was promoted as Head Constable in the year 1988. In the year 1990, the petitioner suffered Kidney trouble and he underwent treatment during 1990-91. Though he applied for leave, the same was not sanctioned and, therefore, he was proceeded against for absence from duty and an inquiry was held but that enquiry was not concluded by the Enquiry Officer since the petitioner was dismissed from service on October 18, 1991 on the charge of his absence during 1990. Against the order of his dismissal, the petitioner preferred an appeal which was partly allowed on February 5, 1992 and the petitioner was reduced in rank and he was reinstated into service. After his reinstatement, the enquiry which started for his absence in 1990, and the Enquiry Officer found the petitioner guilty of charge for absence from duty and accordingly a charge sheet was issued on August 7, 1992 and by an order dated August 31, 1992 (Annexure P. 7) the petitioner was dismissed. The appeal filed by the petitioner was also dismissed on January 19, 1993 vide Annexure P-9. The revision petition filed by the petitioner was also dismissed on December 17, 1993. Hence the petitioner filed this writ petition.

(3.) From the record, it is clear that for earlier absence from duty for certain period, an enquiry was held and the petitioner was dismissed from the service during the pendency of the enquiry for his absence during 1990. According to the petitioner, he was suffering from Kidney problem and he applied for leave and he also himself got admitted in the Medical College Hospital at Rohtak. The enquiry report also shows that the enquiry officer has considered his earlier absence for which the petitioner was already punished, therefore, the Enquiry Officer erred in considering the earlier absence from duty for which punishment has already been awarded to the petitioner. It is to be noted that the enquiry has to be confined to the absence from duty during the period for 1990 and 1991. Annexure P-1 shows that the petitioner was admitted in the hospital on May 30, 1991 and discharged on June 22, 1991 and the disease was diagnosed as Nephrotic Syndrome. Therefore, it cannot be said that the absence of the petitioner from duty is either wilful or wanton. According to the petitioner he had also sent an application for leave during the period he was under treatment. The Enquiry Officer has not considered whether the absence from duty during this period was justified or not. As already observed, the absence from duty for the earlier period cannot be taken into consideration since the petitioner was proceeded against for the earlier absence and he was awarded punishment of dismissal by the similar Authority. On appeal, he was reduced in rank. It is not disputed that when once the petitioner was punished for absence, the same cannot be pressed into service for passing an order of dismissal for the second time. The Enquiry Officer and the Punishing Authority have to confine to the absence from duty during the year 1990. Annexure P-2, dated September 29, 1991, which is the summary of allegations, relates to the period of absence during the period from August 23, 1990 to April 13, 1991. On the basis of the enquiry conducted for those allegations, the Superintendent of Police dismissed the petitioner on October 18, 1991, which order was modified by the Inspector General of Police, Hisar, vide Annexure P-3. Annexure P-4, is the report of the enquiry dated July 21, 1992. It refers to the period of absence during the period from August 23, 1990 to April 13, 1991, which have been dealt with by the Deputy Inspector General of Police in his order Annexure P-3. Annexure P-5, shows that the Superintendent of Police also took, into account the period of absence in the years 1975, 1977, 1981, 1983, 1984, 1986, 1987, 1988, 1990 and 1991. Annexure P-5 also shows that for the period of absence, same punishment has already been awarded and for certain period he has been sanctioned leave without pay. Therefore, I am of the opinion that the principle of double jeopardy will apply in the present case. When once the petitioner has been awarded punishment for his absence for the earlier period, the same cannot be made the subject matter of the enquiry and the petitioner cannot be dismissed from service taking into consideration the earlier absence.