- (1.) THE petitioner, an ex-Constable in the service of Punjab Police, has challenged the order of the Senior Superintendent of Police, Ferozepur contained in Endst. No. 671- 74/s. T/h dated August 18, 1987, dismissing him from service and the appellate order of the Deputy Inspector General of Police, Ferozepur Range, Ferozepur Cantt. dated December 30, 1987, affirming the order of the Senior Superintendent of Police, in this petition under Articles 226/227 of the Constitution of India.
(2.) THE facts:the petitioner was suspended from service on May 26, 1986, re-instated on August 22, 1986, but did not report for duty till March 2, 1987. He remained absent from duty for 5 months and 5 days. The Senior Superintendent of Police, Ferozepur Range, Ferozepur Cantt. , who is the appointing authority, ordered departmental enquiry against the petitioner for remaining absent from duty without leave. The Enquiry Officer submitted his report saying that the charge of remaining absent from duty stood proved and the appointing authority concurred with his report. He issued a show cause notice to the petitioner as to why he should not be removed from service. The show cause notice could not be served upon the petitioner since he remained absent from his residence continuously for a long time. On verification, it was found that the petitioner was residing with his father-in-law. The show cause notice was accordingly sent to him on that address. He was not available at the residence of his father-n-law. Notice was served upon the brother-in-law of the petitioner in the presence of the Members of the Gram Panchayat. After receipt of the show cause notice, the petitioner did not submit any reply. Shri R. S. Chalia, Senior Superintendent of Police Ferozepur Range, Ferozepur Cantt. , who had issued the show cause notice to the petitioner was transferred from Ferozepur and his successor in office ordered that a fresh show cause notice be issued to the petitioner. The petitioner was not found at his residential address. The show cause notice was served up6n his wife in the presence of respectables of the village. The petitioner did not think it desirable to submit any reply to the show cause notice, which was served upon his wife. The appointing authority concurring with the report of the Enquiry Officer held thus:- "according to evidence on the file the charges of absence are proved against the offender, besides this, the offender is found addict of keeping himself absent. By remaining absent for such a long period, without any reasonable excuse, without information or sanction of leave, has exhibited remiss, irresponsibility and indiscipline. Police force is a disciplined force. This adversely affects the other servants and thus this fault of the offender cannot be tolerated at any costs and I do not think it proper to take a lenient view with the offender. Therefore, I pass an order of dismissal of the offender from the Police service from today afternoon. The period of absence (5 months and 5 days) is considered leave without pay. " Aggrieved against the order the dismissal from service passed by the Senior Superintendent of Police, the petitioner filed statutory appeal before the Deputy Inspector General of Police, Ferozepur Range, Ferozepur. The appellate authority, on examination of the service record of the petitioner, the enquiry report and the order of the appointing authority, came to the conclusion that the misconduct of the petitioner stood established. It concluded thus: "in view of the aforesaid discussion, I am of the considered opinion that the misconduct of the appellant stands established from evidence brought on record. I also find from service record of the appellant that he was previously awarded 8 punishments on different occasions and as such he is a habitual absentee. Police is a disciplined organisation and such long absence from duty cannot be tolerated. Hence I do not see anything (sic) order. The appeal of Ex-Constable Karnail Singh No. 1119/fzr is rejected being devoid of force and the impugned order is upheld. " These orders have been challenged in this writ petition.
(3.) WHEN the writ petition came up for motion hearing before a Bench of this Court, the petitioner's counsel relied upon a Single Bench decision of this court reported as State of Punjab v. Chanan Singh,1 1982 (2) C. L. J. 21. Presumably the Bench did not agree with the conclusions arrived at by the learned Single Judge in the reported judgment and they directed that the writ petition be heard by a Division Bench. It is how this writ petition has been placed before us. In Chanan Singh case (supra), Chanan Singh, a Constable in the Punjab Police was dismissed from service, after enquiry, for remaining absent from duty. He filed a suit for declaration in the civil Court challenging the order of dismissal on the ground that it was void. His plea was that he had not remained absent from duty but had overstayed on leave. The trial Court dismissed the suit holding that the order of dismissal from service was valid. The first appellate Court differed with the conclusions arrived at by the trial Judge and held that the order of termination was bad as it was not a speaking order and the Punishing Authority did not advert to Rule 16. 2 (1) of the Punjab Police Rules, 1934 before passing the order of termination; that this rule provides that the order of dismissal from service could be passed only for the gravest act of misconduct. Remaining absent from duty without leave was not found to be the gravest act of misconduct for which the order of dismissal from service could be passed. The State of Punjab, aggrieved against the order passed by the first appellate Court, challenged the same in regular second appeal in this Court. The learned Single Judge in Paras 5 and 6 of the judgment observed thus: "5. The punishing authority came to the conclusion, after show cause notice and enquiry, that the respondent remained absent on expiry of his leave. In my opinion, it does not constitute gravest act of misconduct inasmuch as it is not a case where a person remained absent from duty, it may be a case of over-stay on leave and in order to constitute the gravest act of misconduct resulting in the punishment of removal something more than this is required. Admittedly the "judgment cited by the learned counsel for the appellant reported in Gurdev Singh's (supra) the Hon'ble Division Bench came to the conclusion on facts that the person was found in a drunken condition on duty and the Enquiry Officer after going into the evidence came to the conclusion in a 17 pages order that he was guilty of gravest act of misconduct. 6. In the present case, Exhibit P/1, order of dismissal, is a non-speaking order. From this order, it cannot be inferred at all that the punishing authority was alive to the inbuilt ingredients in the Rule 16. 2 (1) of the Punjab Police Rules for awarding punishment of dismissal. Undisputedly the Court should not interfere with regard to the quantum of punishment with respect to a person or Police Officer found guilty of dereliction of duty. The Courts have jurisdition only to interfere where the punishment or the action has been taken unilaterally or arbitrarily. In view of my observation that the punishing authority was not alive to the ingredients, i. e. while awarding the punishment in terms of Rule 16. 2 (1) of the Punjab Police Rules, it has to be satisfied that the act attributed is one of the gravest acts of misconduct resulting in his becoming complete unfit for police service. While making such an assessment or awarding punishment of dismissal, the punishing authority should also keep in view the length of service of the delinquent and his claim to pension. Here admittedly, none of these things was taken into consideration. A reading of Exhibit P/1 makes it obvious that punishing authority was not alive to the situation at all. ";