Dismissed

Krishan Kumar v. State of Haryana & Ors.

Punjab & Haryana HC28 Feb 2012RSA/1949/2011

Case brief

AI extract

What is this about?

In a second appeal against a civil judgment dismissing departmental proceedings, the High Court dismissed the appeal. Holding that the department followed due process and the trial court erred in setting aside the penalty without evidence of procedural illegality, the court rejected claims of double jeopardy.

What did the court decide?

Appeal dismissed; no rewrite of impugned departmental orders.

Krishan Kumar Vs State of Haryana & Ors. — Service and Employment | Punjab & Haryana HC (2012)

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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RSA No.1949 of 2011(O&M) Date of Decision: 28.2.2012.

Krishan Kumar

--Appellant

Versus

Haryana State & others

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--Respondents

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CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.

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Present:Mr. Madan Sandhu, Advocate for the appellant.

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TEJINDER SINGH DHINDSA.J

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The plaintiff is in second appeal before this Court against the judgement dated 13.1.2011 passed by the First Appellate Court, whereby the judgement and decree dated 28.7.2010 passed by the Trial Court has been set aside and the suit filed by the plaintiff has been ordered to be dismissed.

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In brief, the plaintiff filed a suit for mandatory injunction for setting aside the orders dated 19.4.2007 and 30.6.2007 passed by the Superintendent of Police, Hisar and Inspector General of Police, Hisar Range, Hisar respectively stating the same to be null and void and seeking directions for a re-consideration of the entire issue. It was pleaded that the plaintiff was working as a Constable in Haryana Police and he was transferred as Petrol Depot Guard, Hisar and had been relieved from his duties in Police Station Civil Lines, Hisar on 11.6.2006. He had, however, joined duties on 11.7.2006 in Petrol Depot Guard, Hisar. His absence of 30 days i.e. w.e.f. 11.6.2006 to 10.7.2006 formed the basis of initiation of disciplinary proceedings. An Inquiry Officer had been appointed and upon furnishing of an inquiry report, wherein he had been found guilty of being

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RSA No.1949 of 2011(O&M)

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-2-

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willfully absent from duty, a show cause notice tentatively proposing to impose the major penalty of dismissal from service had been served upon him. Upon the plaintiff having furnished a reply to such show cause notice, a penalty of stoppage of five future increments with permanent effect as also by treating the period of absence from duty as period of leave without pay had been imposed upon him. Such order of punishment dated 19.4.2007 passed by the Superintendent of Police, Hisar had been affirmed by the Appellate Authority i.e. the Inspector General of Police, Hisar Range,Hisar vide order dated 30.6.2007. It was pleaded that on the date of his relieving i.e. On 11.6.2006 the plaintiff had been ill and prior thereto he had lost two of his close relatives. As such, he was in a state of mental depression. He had been taken by his father-in-law for treatment in Delhi and as such he had remained under the constant treatment and supervision of one Dr.C.M. Bansal. The plaintiff pleaded that even though, he had desired to communicate to his superior authorities as regards his absence but it was on account of his state of depression and non-availability of any relative that he was not able to inform as regards his absence from duty.

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The defendants refuted the assertions made by the plaintiff apart from admitting that he had remained willfully absent from duty for a period of 30 days. It was stated that the order imposing the penalty of five future increments had been passed after complying the due procedure of having inquired into the charge and having afforded due opportunity to the plaintiff.

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Upon the pleadings of the parties, following issues have been framed by the Trial Court:-

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RSA No.1949 of 2011(O&M)

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“1. Whether the order dated 19.4.2007 passed by the defendant no.4 and order dated 30.6.2007 passed by the defendant no.3 are illegal, null and void and against the principles of natural justice?OPP.

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Whether the plaintiff is entitled to mandatory injunction directing the defendants to release all the service benefits with the plaintiff, as prayed for?OPP.

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Whether the plaintiff is estopped by his own act and conduct to file the present suit?OPD.

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Whether the plaintiff has no cause of action or locus standi to file the present suit.?OPD.

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Relief.”

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The Trial Court decreed the suit of the plaintiff in his favour and held the orders dated 19.4.2007 imposing the punishment as also order dated 30.6.2007 passed by the Appellate Authority to be bad in law. Further directions were issued to the defendants to re-consider the matter and to take a lenient view. The defendants preferred a civil appeal and vide judgement dated 13.1.2011 passed by the First Appellate Court the judgement and decree dated 28.7.2010 passed by the Trial Court has been set aside. Resultantly, the plaintiff-appellant is in second appeal before this Court.

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Mr. Madan Sandhu, learned counsel appearing for the plaintiffappellant vehemently argued that there was a complete non-application of mind at the hands of the punishing authority as also the Appellate Authority and in view thereof the Trial Court had set aside the impugned orders and the First Appellate Court has grossly erred in reversing the well reasoned findings recorded by the Trial Court. Learned counsel would further argue that the impugned orders amount to double jeopardy in as much as on the same set of allegations i.e. having remained willfully absent from duty for a period of 30 days, two punishments have been imposed; one with regard to

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RSA No.1949 of 2011(O&M)

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-4-

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stoppage of five future increments and the other by treating the period in question i.e. w.e.f. 11.6.2006 to 10.7.2006 as period spent on leave without pay.

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Having given my thoughtful consideration to the submissions made by learned counsel for the appellant and having minutely perused the judgements of the Trial Court as also the First Appellate Court, I find that the present second appeal is without merit and must fail for the reasons recorded hereinafter.

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Prior to imposing the punishment of stoppage of five increments, a complete procedure envisaged in law has been followed by the respondents. The appellant himself admits that he was absent from duty for the period w.e.f. 11.6.2006 to 10.7.2006. He had remained absent without even having informed his immediate superiors as regards such absence and the reasons for having remained absent. Accordingly, a formal charge was framed and an Inquiry Officer i.e. Deputy Superintendent of Police (Detective), Hisar had been appointed. Upon having conducted a regular inquiry, an inquiry report (Ex.D-5) had been furnished holding the appellant guilty of the charge of being willfully absent from duty. Agreeing with the findings furnished in the inquiry report, the punishing authority issued a show cause notice to the appellant tentatively seeking to impose the major penalty of dismissal from service. Upon due consideration of the reply furnished by the appellant to the show cause notice served upon him, a lenient view has apparently been taken by imposing a lesser punishment of stoppage of five future increments with permanent effect. Even the statutory appeal preferred by the appellant has been rejected by the Inspector General of Police, Hisar Range, Hisar after affording the

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RSA No.1949 of 2011(O&M) -5-

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opportunity of personal hearing to him.

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The scope of judicial scrutiny by the courts in the matter of administrative decisions is limited to the decision making process and not as regards the decision itself. It is equally well settled that while considering the challenge to an administrative decision, the courts will not act as a court of appeal. The courts will interfere only upon the decision having been taken in pursuance to a procedure, which was grossly irrational and illegal. The following observations of Hon'ble the Supreme Court in case of Delhi Development Authority and another Vs. U.EE Electrical Engineering Pvt. Ltd. and another reported as 2004 (11) SCC 213 would be most relevant:-

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“12. Courts are slow to interfere in matters relating to administrative functions unless decision is tainted by any vulnerability such as lack of fairness in procedure, illegality and irrationality. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.

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13. The famous case Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. (KB at p.229; All ER p.682) commonly known as “The Wednesbury Case” is treated as the landmark so far as laying down various basic principles relating to judicial review of administrative or statutory direction is concerned.

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14. The law is settled that in considering challenge to administrative decisions courts will not interfere as if they are sitting in appeal over the decision.”

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It was not the case of the plaintiff-appellant that the procedure

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resorted to during the course of disciplinary proceedings was unfair or irrational. Interestingly, even the Trial Court had decreed the suit of the plaintiff-appellant in his favour and had set aside the order of punishment

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RSA No.1949 of 2011(O&M) -6-

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but as regards issues no.1 and 2 had held in the following terms:-

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“22. This court would like to add that the order of departmental enquiry and order of punishment by the SSP and order of Appeal by Inspector General of Police may be legally justified but when we see the orders on the touch stone of natural justice and reasonableness, then, it can be said that a mechanical approach has been adopted in the case of the plaintiff.”

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A finding having been recorded by the Trial Court holding the departmental inquiry and the order of punishment as also the order of the Appellate Authority to be legally justified, there was no occasion to set aside the same on the touch stone of reasonableness, I find no infirmity in the impugned judgement passed by the First Appellate Court, whereby the judgement and decree passed by the Trial Court has been set aside, wherein the Trial Court had merely proceeded on conjectures and surmises.

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Even otherwise the appellant is a member of a disciplined police force. Remaining absent from duty for a period of 30 days would be a serious charge. It has come on record that the appellant has been a habitual absentee. In terms of his service record, he had remained willfully absent on as many as 15 occasions which would in turn come to a total of 174 days. Previously also, the appellant had been awarded a censure in the year 1992 on account of the same charge. Remaining willfully absent from duty as a member of the police force and repeating such offence could have even been construed as “a gravest act of misconduct”. A lenient view has already been taken in as much as the appellant has been awarded the penalty of stoppage of increments with permanent effect as opposed to the proposed penalty of dismissal from service.

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RSA No.1949 of 2011(O&M)

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-7-

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Equally without merit is the contention of learned counsel appearing for the appellant that he has been awarded two punishments for the same offence. Suffice it to notice that the penalty of stoppage of five future increments with permanent effect was with respect to the specific charge of having remained willfully absent over a period of 30 days. That apart, it was incumbent for the competent authority to have taken a decision with respect to such period of absence and the same has been treated as leave of the kind due but without pay. The charge of being willfully absent from duty having been proved, it would not lie in the mouth of the appellant to contend that he would be entitled to even pay for such period.

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I find absolutely no merit in the present second appeal. No question of law much less a substantial question of law arises for consideration in the present second appeal.

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The appeal, accordingly, is dismissed.

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Appeal dismissed.

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(TEJINDER SINGH DHINDSA) JUDGE

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28.2.2012. lucky

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Whether to be reported? Yes.

Krishan Kumar v. State of Haryana & Ors.

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What is this about?

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Krishan Kumar v. State of Haryana & Ors.

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