Ajay Tewari, J. - (1.) This appeal has been filed against the concurrent judgments of the Courts below rejecting the suit of the appellant whereby he has sought a declaration that the order of his dismissal was illegal.
(2.) The brief facts are that the appellant joined as Constable on 08.01.1971. He was suspended on 25.11.1983 on account of having been involved in a criminal case( it is not disputed that he was subsequently acquitted in the said criminal case) and he was directed to report to the police lines during his suspension. Since he was found absent on many dates, a regular inquiry was ordered against him and after the same he was dismissed from service. As the appeal against the dismissal order having been rejected on 04.12.85, the instant suit was filed. Both the Courts held that the inquiry proceedings were fair, full opportunity was granted to the appellant and in view of his conduct, the order of dismissal was valid. No question of law was proposed when the appeal was filed. However, today learned counsel for the appellant has raised the following questions of law:- "Whether in the facts and circumstances of this case the order imposing the extreme punishment of dismissal was justified -
(3.) He has argued that on the date of suspension the petitioner had 12 years service and has relied upon a judgment of this Court passed in Randhir Singh v. Dy. Inspector General of Police, Ambala Range, Ambala Cantt reported as 2004(4) Recent Services Judgments 720 wherein Hon'ble Mr.Justice J.S. Khehar held as follows:- "11. I have perused the order of punishment dated 7.12.1984 (Annexure P-3). The punishing authority while inflicting the punishment of dismissal from service on the petitioner, admittedly did not take into consideration the fact that the petitioner had rendered more than 10 years service entitling him to pensionary benefits. The punishing authority also did not take into consideration the fact that the petitioner had not committed any act or omission or commission described as "gravest act of misconduct" by the rule itself, while inflicted the gravest punishment prescribed. In its aforesaid action, the authorities obviously did not follow Rule 16.2 in its letter and spirit. It is mandatory for the punishing authority to take into consideration the length of service of an employee and his claim to pension before inflicting the punishment of dismissal from service under Rule 16.2 of the Punjab Police Rules. 12. The seriousness of the delinquency committed by the petitioner in the instant case is substantially diluted on account of the fact that he had remained absent only during the period he was under suspension. Absence from duty during the period of suspension cannot be equated with the absence from duty during active duty. The Supreme Court in Dharam Singh case (supra) arrived at the conclusion that the appropriate punishment to be inflicted upon the respondent therein on account of his absence from duty during the period of suspension was that of compulsory retirement from service, rather than removal from service. Relying upon the judgment referred The Apex Court in Dharam Singh's case (supra) had keeping in mind the fact that the absence of the petitioner was only during the period of suspension and further that the respondents did not take into consideration his length of service preceding his alleged absence from duty (which in itself was admittedly sufficient to earn him pension), does not justify the punishment of dismissal from service. I am satisfied that the ends of justice would be met if the aforesaid punishment inflicted upon the petitioner is submitted with the punishment of compulsory retirement from service, on the basis of the parameters laid down by the Apex Court in Dharam Singh's case (supra), wherein also for an allegation similar to the one raised in the instant case, the Supreme Court substituted the punishment of removal from service to that of compulsory retirement from service." Learned DAG is not in a position to cite any contrary judgment. Resultantly this appeal is allowed and it is declared that the order of dismissal would be converted into an order of compulsory retirement keeping in mind the fact that more than a quarter century has lapsed since the impugned order was passed. The respondents are directed to compute the monetary benefits and release the same to the appellant within a period of three months from today. Appeal allowed.;