State of Punjab v. Mohinder Singh, (SC) BS195535
SUPREME COURT OF INDIA

Before:- Ashok Bhan and Dr. AR. Lakshmanan, JJ.

Civil Appeal No.2559 Of 2005 (Arising out of SLP (C) No. 13859 of 2003) D/d. 8.4.2005.

State of Punjab & Ors. - Appellant

Versus

Mohinder Singh - Respondent

Punjab Police Rules, Rule 16.2 - Dismissal - Absence from duty - Gravest misconduct - Without sanctioned leave or prior intimation respondent Police constable remained absent from duty for 5½ months - High Court found that single act of remaining absent without leave would not amount to gravest act of misconduct - Held - This would depend upon the fact situation of each case - Record showed that the respondent had remained absent from duty without sanctioned leave on 15 different occasions - Respondent being member of disciplined force could not be permitted to remain absent without taking leave and that too for such a long period - Respondent cannot be retained in service - However authorities directed to pass an appropriate order if any representation for converting the order of dismissal into an order of compulsory retirement was made by respondent who had already put in more than 23 years of service.

[Paras 12 to 14]

JUDGMENT

Ashok Bhan, J. - Leave granted.

2. Respondent, who is working as a constable in the Punjab Arm Police at Jalandhar, was dismissed from service after holding a departmental enquiry on the charge of remaining absent from duty for five & half months without any sanctioned leave or prior intimation.

3. Appeals/revision filed by the respondent before the higher authorities were dismissed. Thereafter respondent filed a civil suit in the Court of Civil Judge (Jr. Division) Amritsar, for quashing the impugned orders with consequential relief.

4. Trial Court dismissed the suit. Aggrieved against which the respondent filed an appeal bearing No. 204 of 1999 before the Additional District Judge, Amritsar. The appellate Court set aside the judgment and decree passed by the trial Court and decreed the suit.

5. The order passed by the Senior Superintendent of Police dated 13.07.1995, the order passed by the Deputy Inspector General of Police in appeal dated 21.09.1996 and the order passed by the Inspector General of Police, Border Range, Amritsar in revision dated 14.05.1997 were held to be null and void. As a consequence thereof the respondent was ordered to be reinstated in service with all consequential benefits like re-instatement in service and the arrears of salary etc. It was held that the order of dismissal could not be passed against the respondent for a single act of remaining absent from duty without sanctioned leave. Liberty was reserved with authorities to pass a fresh order keeping in view the length of service of the respondent.

6. Relevant portion of the order reads thus:

7. Aggrieved against the order passed by the first appellate court, appellants filed second appeal before the High Court which has been dismissed by the impugned order. Aggrieved against which the present appeal has been filed.

8. The conduct of the respondent who is a member of disciplined force in remaining absent from duty for five & half months without sanctioned leave or prior intimation is reprehensible.

9. Rule 16.2 of the Punjab Police Rules reads as follows:

10. Rule 16.2 provides that an order of dismissal can be passed only for the commission of gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service.

11. We do not agree with the High Court that a single act of remaining absent without leave would not amount to gravest act of misconduct.

12. This would depend upon the fact situation of each case. In the present case we find that the respondent remained absent without leave for quite a long period. The explanation rendered by him did not find favour either with the enquiry officer or the punishing authority. The findings of facts were not disturbed in the departmental appeal/revision.

13. This finding was also not disturbed in the suit. The only ground for setting aside the orders impugned in the suit is that a single act of remaining absent from duty without sanctioned leave did not merit an order of dismissal from service. We find from the record that the respondent had remained absent from duty without sanctioned leave on 15 different occasions. Although no major punishment was awarded to him but he was ordered to be censured once. In our view, the respondent being member of disciplined force could not be permitted to remain absent without taking leave and that too for such a long period. He cannot be retained in service. The order impugned before us is set aside and the suit is ordered to be dismissed.

14. Counsel appearing for the respondent submitted that the order of dismissal may be converted into an order of compulsory retirement from service as the respondent has already put in more than 23 years of service. Counsel appearing for the appellants after taking instructions states that the case of the respondent would be considered sympathetically by the authorities if he moves an application for converting his order of dismissal(into an order of compulsory retirement. Impugned orders are set aside. The authorities however hall is at liberty to pass an appropriate order on the representation, if any, filed by the respondent for converting the order of dismissal into an order of compulsory retirement.

15. The appeal is disposed of accordingly.

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