Allowed

Om Parkash v. State of Haryana & Ors.

Punjab & Haryana HC20 Jul 2012CWP/702/1994

Case brief

AI extract

What is this about?

The High Court quashed orders dismissing a police officer with nearly 19 years of service for misconduct. Relying on Rule 16.2 of the Punjab Police Rules and Supreme Court precedents, the Court held that dismissal requires considering length of service. The dismissal was converted to compulsory retirement to safeguard pension benefits.

What did the court decide?

Orders of dismissal, appeal, and revision set aside; matter converted to compulsory retirement w.e.f. 25.02.1992; respondents directed to compute and release monetary benefits.

Om Parkash Vs State of Haryana & Ors. — Pension and Retirement Benefits | Punjab & Haryana HC (2012)

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CWP No. 702 of 1994

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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CWP No. 702 of 1994 Date of Decision:- July 20, 2012

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Om Parkash

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..............PETITIONER(S)

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vs.

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State of Haryana and others

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...........RESPONDENT(S)

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CORAM:- HON'BLE MR. JUSTICE G.S. SANDHAWALIA

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Present:Mr. R.K. Malik, Sr. Advocate, with Mr. Ramandeep Singh, Advocate, for the petitioner.

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Ms. Aakanksha Sawhney, DAG, Haryana, for the respondents.

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G.S. SANDHAWALIA (J.)

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The present writ petition has been filed under Articles 226 and 227 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing of orders dated 25.02.1992 (Annexure P-10) whereby, the petitioner was dismissed from service and order dated 03.06.1992 (Annexure P-11) and 06.09.1993 (Annexure P-13) whereby, the order of dismissal of the petitioner has been upheld in appeal and revision and for a further direction for reinstatement of the petitioner with all consequential benefits.

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The pleaded case of the petitioner is that he joined service as Head Constable in the year 1973 at Rohtak and he enjoyed an unblemished service record and earned 27 good reports and not a single adverse report had been communicated to him and that he had exemplary service record. Reliance was placed on recommendation for his promotion as Assistant Sub Inspector by the Deputy Inspector General of Police and

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in pursuance of which he was promoted as Assistant Sub Inspector on adhoc basis w.e.f. 27.01.1989. It was submitted that the petitioner with exemplary courage apprehended four armed dacoits and was given promotion in the year 1989. It has been pleaded that the petitioner was involved in a criminal case in the year 1989 with the connivance of the Delhi Police where he had gone for investigation from Faridabad and the local police of Delhi had been intimated about the investigation. The petitioner was mercilessly beaten and his revolver was snatched and his companion was killed and he was involved in FIR No. 63 of 1989 under Section 304-A IPC and was suspended w.e.f. 25.02.1989 in view of the FIR. The petitioner was, however, eventually acquitted by the Metropolitan Magistrate, Delhi on 07.03.1992. It was accordingly pleaded that the petitioner had remained under suspension and had not been reinstated but was again suspended on 12.09.1991 and from 1989 onwards, he was residing at Nazabgarh with brother and was mentally upset due to the attack by the criminals and remained under treatment at New Delhi and reliance was placed upon various medical certificates. It is pleaded that the petitioner had been wrongly charge-sheeted on the ground of absence from duty on 15.04.1991 and an ex parte inquiry was held against him and the order of dismissal was passed on 25.02.1992 against which he filed the appeal and the revision, which have been dismissed, all of which are now the subject matter of challenge in the present writ petition.

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The respondents, in their written statement, have justified the action taken against the petitioner and have also admitted that commendation certificate was awarded to the petitioner and he was promoted to the next rank but the same was only on ad hoc basis and he was liable to be reverted at any time to the post of Head Constable. Regarding the FIR No. 63 dated 25.02.1989 lodged at Police Station

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Sultanpuri, Delhi it was alleged that the petitioner had attended the marriage of a relative and opened four fires from his service revolver in a drunkard condition and caused the death of Constable Karan Singh at the spot and he was placed under suspension w.e.f. 25.02.1989 and transferred to the Police Lines, Faridabad. The departmental inquiry was also ordered against him but was kept pending till decision of the criminal case pending against him. It was further pleaded that during the suspension period, he was found absent from the General Parade on 15.04.1991 without any sanctioned leave or prior permission or information to the higher authorities and his absence was recorded and a regular departmental inquiry was initiated against him but the petitioner did not join the proceedings of departmental inquiry despite best efforts and remained absent and accordingly the inquiry officer submitted his inquiry report dated 30.01.1992 and on the basis of the said inquiry report, he was dismissed from service. The said order was thereafter upheld in appeal and revision and was legal and valid as per the procedure prescribed under the Punjab Police Rules, 1934 (as applicable to the State of Haryana) (hereinafter referred to as the 'PPR'). The fact that the petitioner having joined service in the year 1973 was admitted and it was pleaded that the subsequent conduct of the petitioner was not upto the mark as required of a responsible officer. It was submitted that the petitioner was absent from duty since 15.04.1991 without sanctioned leave or prior permission to the higher authorities and departmental inquiry was ordered against him and he was placed under suspension vide order dated 12.09.1991. The factum of the petitioner having been not reinstated, as alleged in paragraph no. 6, has not been specifically denied by the respondents in their written statement. It was alleged that the certificates of medical treatment are wrong and fake and he had not submitted any application for leave and

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remained absent from duty w.e.f 15.04.1991 upto the date of the order i.e. 25.02.1992 and the illness, as alleged by him, was not of such nature that he could not appear before the authorities for sanction of leave. Accordingly, it was pleaded that the petitioner, though under suspension, would continue having the same responsibilities and discipline as if he had not been suspended in view of Rule 16.21 of the PPR. Having been transferred to the Police Lines, Faridabad, he was to attend all roll calls and was required to perform such duties and to attend such parades as the Superintendent of Police may direct. It was alleged that the notice of the inquiry proceedings was sent to him and he was doing the business of cement stockist and property dealing. The petitioner refused to accept the show cause notice and the same was fixed at the door of his place of business. Accordingly, the continued absence and misconduct of such a grave nature was sufficient to prove that the petitioner was incorrigible and completely unfit for police service in view of the provisions of Rule 16.2 of the PPR Rules.

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Senior counsel for the petitioner has submitted that in case the petitioner continued in service, he would have retired on 31.08.2011 and, therefore, submissions in the present case are only being made on the quantum of penalty since the length of service of the petitioner was not taken into consideration as per Rule 16.2 of the PPR. He contended that the petitioner was enrolled in the year 1973 as a Constable and was confirmed as a Head Constable on 31.01.1988 and reference is made to Annexure P-3 in this context and accordingly it is argued that on the date the order of dismissal was passed i.e. 25.02.1992, he had almost completed 19 years of service and, therefore, the Superintendent of Police was under a statutory obligation to take into consideration the length of service of the petitioner. Fact of the petitioner being promoted as ASI on

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ad hoc basis w.e.f. 27.01.1989 is also clear from the order of the Superintendent of Police, Faridabad dated 30.01.1989 (Annexure P-2). Reliance has accordingly been placed upon the judgment of this Court rendered in Randhir Singh vs. Deputy Inspector General of Police, Ambala Range, 2004 (4) RSJ 720 to contend that the petitioner was under suspension and, therefore, the extreme order of penalty should not have been passed and the authorities should have taken into consideration the length of service of the petitioner so that his retiral benefits were not affected and the extreme order of dismissal should not have been passed in this case.

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Counsel for the State, on the other hand, has submitted that the petitioner was suspended on 15.04.1991 on account of his absence from the parade duty and submitted that even he did not come present and join the proceedings till the order of dismissal was passed on 25.02.1992 and, therefore, justified the order of dismissal on the ground that being a uniformed personnel in a disciplined force, such absence without reasonable cause was the gravest act of misconduct.

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There is substantial merit in the submission of the counsel for the petitioner. Admittedly, the petitioner was enrolled way back in the year 1973 and, therefore, had completed 19 years of service at the time the order of dismissal was passed against him. Rule 16.2 of the PPR reads as under:-

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“16.2. Dismissal – Dismissal shall be awarded

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only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. In making such an award regard shall be had to be length of service of the

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offender and his claim to pension.

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7. The said rule has been the subject matter of discussion by this Court in several judgments and the term 'length of service' and the right of pension has been considered time and again. This Court in State of Punjab vs. Piara Singh, 2004 (2) RSJ 279 noticed that the personnel had rendered 22 years of service and directed that the order of dismissal be converted into the order of compulsory retirement from the date of the said order. Similarly, in Randhir Singh's case (supra), a single Bench of this Court while noticing that the petitioner therein had rendered service of more than 10 years and while placing reliance upon the decision of the Apex Court in State of Punjab and others vs. Dharam Singh, 1997 (2) SCC 550, converted the order of dismissal to the order of compulsory retirement from service. The said view has also been followed by this Court in RSA No. 2066 of 1988 decided on 07.01.2012 titled Vijay Singh, Ex. Constable vs. Haryana State and others. The Apex Court in Harjit Singh and another vs. State of Punjab, (2007) 9 SCC 582, while referring to Rule 16.2 of PPR, directed that the punishment of compulsory retirement would be appropriate since the length of service had not been taken into consideration by the disciplinary authorities. Reliance was placed upon the earlier decisions of the Apex Court in State of Punjab vs. Ram Singh, Ex. Constable, (1992) 4 SCC 54 to hold that the second part of the Rule regarding the length of service has to be taken into consideration when the gravest act of misconduct has been recorded for passing the order of dismissal to meet the ends of justice.

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The Apex Court in the case of Ram Singh (supra) held as

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under:-

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“7. Rule 16.2(1) consists of two parts. The first part

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is referable to gravest acts of misconduct which entails awarding an order of dismissal. Undoubtedly there is distinction between gravest misconduct and grave misconduct. Before awarding an order of dismissal it shall be mandatory that dismissal order should be made only when there are gravest acts of misconduct, that too when it impinges the pensionary rights of the delinquent after putting long length of service. As stated the first part relates to gravest acts of misconduct. Under general clauses Act singular includes plural, act includes acts. The contention that there must be plurality of acts of misconduct to award dismissal is fastidious. The word “acts” would include singular “act” as well. It is not the repetition of the acts complained of but its quality, insidious effect and gravity of situation that ensues from the offending 'act'. The colour of the gravest act must be gathered from the surrounding or attending circumstances. Take for instance the delinquent that put in 29 years of continuous length of service and had unblemished record; in 30^th year he commits defalcation of public money or fabricates false records to conceal misappropriation. He only committed once. Does it mean that he should not be inflicted with the punishment of dismissal but be allowed to continue in service for that year to enable him to get his full pension. The answer is obviously no. Therefore, a single act of corruption is sufficient to award an order of dismissal under the rule as gravest act of misconduct.

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8. The second part of the rule connotes the

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cumulative effect of continued misconduct proving incorrigibility and complete unfitness of police service and that the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The contention that both parts must be read together appears to us to be illogical. Second part is referable to a misconduct of minor in character which does not by itself warrant an order of dismissal but due to continued acts of misconduct would have insidious cumulative effect on service morale may be a ground to take lenient view of giving an opportunity to reform. Despite giving such opportunities if the delinquent officer proved to be incorrigible and found completely unfit to remain in service than to maintain discipline in the service, instead of dismissing the delinquent officer, a lesser punishment of compulsory retirement or demotion to a lower grade or rank or removal from service without affecting his future chances of re-employment, if any, may meet the ends of justice. Take for instance the delinquent officer who is habitually absent from duty when required. Despite giving an opportunity to reform himself he continues to remain absent from duty off an on. He proved himself to be incorrigible and thereby unfit to continue in service. Therefore, taking into account his long length of service and his claim for pension he may be compulsorily retired from service so as to enable him to earn proportionate pension. The second part of the rule operates in that area. It may also be made clear that the very order of dismissal from service for gravest misconduct may entail

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forfeiture of all pensionary benefits. Therefore, the word `or' cannot be read as "and". It must be disjunctive and independent. The common link that connects both clauses is "the gravest act/acts of misconduct".

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A Division Bench of this Court in S.I. Surinder Singh vs. State of Punjab, 2008 (6) SLR 556, also while noticing that the Courts are normally not to interfere in the quantum of punishment inflicted by the employer on its employees, allowed the writ petition after noticing that the petitioner had completed 20 years of service on the date of his dismissal after holding that there is violation of mandatory Rule 16.2 of PPR. Similar view was also taken by another Division Bench in Dhan Singh vs. State of Haryana, 2008 (3) SCT 816, wherein also service of the petitioner who had rendered 11 years and 9 months of service was taken into consideration and the dismissal order which had been upheld by the authorities was set aside and it was directed that the matter should be reconsidered. In Shiv Raj Sidhu vs. Union of India, 2011 (2) SCT 626, another Division Bench of this Court set aside the order of dismissal of the petitioner therein and held that punishment of forfeiture of two years of service would be sufficient punishment as the employee has joined as Assistant Sub Inspector on 21.05.1973 and was to retire on 30.11.2006, just six months prior to his dismissal on 18.05.2006.

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Accordingly, keeping in view the settled proposition of law and in view of the fact that the petitioner's length of service has not been taken into consideration by the disciplinary authorities, it would be appropriate that the order of dismissal and the subsequent orders passed in appeal and revision are set aside and the same are converted into an order of compulsory retirement w.e.f. 25.02.1992 when the order of dismissal was

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passed, in view of the fact that the petitioner had completed almost 19 years of service on the date of his dismissal. The respondents are directed to compute the monetary benefits and release the same to the petitioner within a period of 3 months from the date of receipt of certified copy of the order.

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The writ petition is allowed in view of the above said terms.

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20.07.2012 shivani

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(G.S. Sandhawalia) Judge

Om Parkash v. State of Haryana & Ors.

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Om Parkash v. State of Haryana & Ors.

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