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Saturday, October 3, 2015

the question regarding the right of the petitioner’s pension. = Having regard to the fact that the disciplinary proceedings were initiated in the year 1994, and having regard to the prolonged litigation, we do not find it proper to remand the matter to any of the authorities, either original or appellate. The authorities having found the appellant to be unfit to continue in Police Service, we are of the view that the punishment of compulsory retirement, which is also a prescribed punishment, should have been the appropriate one to be imposed in the circumstances. Therefore, we set aside the order passed by the disciplinary authority as confirmed by the appellate authority on the punishment of dismissal of the appellant and order that the appellant be treated as compulsorily retired from service from the date of the original order, i.e., 22.11.1994. Needless also to say that, in case the appellant is otherwise entitled to any consequential reliefs on that account, the same shall follow.


                        IN THE SUPREME COURT OF INDIA

                       CIVIL  APPELLATE  JURISDICTION

                      CIVIL APPEAL NO.  8064   OF 2015
                  (Arising from S.L.P. (C) No. 10039/2014)


Rajinder Kumar                                     … Appellant (s)

                                   Versus

State of Haryana and another                 … Respondent (s)


                               J U D G M E N T

KURIAN, J.:



Leave granted.


The appellant was appointed as a constable under the first  respondent-State
on 24.12.1979. On the ground that he remained absent from duty while he  was
posted in police lines, Kurkshetra, Haryana on  three  occasions,  extending
to a total period  of  thirty  seven  days,  disciplinary  proceedings  were
initiated. He was  found  guilty  of  misconduct  and  a  major  penalty  of
dismissal  was  imposed  on  him  by   order   dated   22.11.1994   of   the
Superintendent of  Police,  Kurukshetra,  Haryana.  The  appeal  before  the
D.I.G. of  Police,  Ambala,  Haryana  was  dismissed,  and  that  order  was
challenged before the High Court in C.W.P. No. 16511 of 1997. The said  Writ
Petition was  disposed  of  by  Judgment  dated  26.05.2009.  The  operative
portion of the judgment reads as follows:



“It is, thus,  clear  that  the  finding  regarding  the  petitioner  having
committed  gravest  misconduct  cannot  be  faulted.  However,  reading  the
impugned order  against  the  backdrop  of  the  latest  exposition  of  law
(reproduced above). I find that the punishing authority has  not  considered
the question regarding  the  right  of  the  petitioner’s  pension.  In  the
circumstances,  the  writ  petition  is  allowed,  the  impugned  orders  of
punishment (Annexure P-3 and P-8) are set aside and the matter  is  remanded
back to the disciplinary authority for taking a fresh decision on the  above
aspect and pass a fresh  order  of  punishment  within  a  period  of  three
months. However, the order of reinstatement shall remain  in  abeyance  till
such fresh consideration and will depend upon the outcome of the same.”



The order of the learned Single Judge was taken up  in  intra  court  appeal
leading to the impugned Judgment dated 22.02.2013. The  Division  Bench  set
aside the judgment of the  learned  Single  Judge  and  dismissed  the  writ
petition. Aggrieved, the appellant approached this Court.

It is not in dispute that the appellant had put in around fifteen  years  of
service prior to his termination. The charge against the appellant was  only
of  unauthorized  absence  of  short  durations.  The   appellant   had   an
explanation for his absence, that he was taking treatment  in  the  District
Chest T.B.  and  Leprosy  Centre,  Kurukshetra,  Haryana,  for  his  chronic
tuberculosis. It appears, on that count, the  appellant  pleaded  for  mercy
before the Inquiry Officer. However, the Disciplinary  Authority,  by  order
dated 22.11.1994, passed an order dismissing  the  appellant  from  service.
The operative portion of the order dated 22.11.1994 reads as follows:



“In the case in hand the absence from duty for 37 days on the  part  of  the
defaulter was not an isolated act. Even prior to this as mentioned  earlier,
there have been repeated acts of remaining  absent  from  duty,  and  taking
lenient view of the matter, the defaulter had been let off by the  award  of
lesser punishment giving him an opportunity to  reform.  Despite  giving  an
opportunity to reform himself he continued to remain absent  from  duty  off
and on. Such a  misconduct  from  a  member  of  disciplined  force  is  not
expected, who has about 15 years of service  to  his  credit.  He  has  thus
proved himself to be incorrigible and thereby unfit to continue in  service.
Police service is a disciplined service and it requires to  maintain  strict
discipline. Laxity in this behalf erodes discipline in the  service  causing
serious affects in the maintenance of law and order.

      I thus award Constable Rajinder Kumar, 343/KKR  penalty  of  dismissal
from service with immediate effect.”



 In appeal, the appellant, inter alia, pleaded for mercy and  alteration  of
the punishment. His plea  was  rejected  by  the  appellate  authority.  The
operative portion of the order dated  21.04.1995  passed  by  the  appellate
authority, reads as follows:

“The appellant has further pleaded that the punishment  awarded  to  him  is
extreme. He is the only earning member of the  family.  He  has  prayed  for
leniency. I have perused  the  service  record  of  the  appellant.  He  was
enrolled in the police force w.e.f. 24/12/79. He has  rendered  the  service
of 15 ½ years. He remained absent on four occasions in  the  year  1986.  He
remained from 12/4/89 to 3/7/89. Again he remained absent for  33  days.  He
was awarded censured in 1986. Punishment of stoppage of two increments  vide
O.B. No. 530/94. He was also given punishment of stoppage of  one  increment
vide O.B. No. 523/94  for  consuming  liquor  on  duty.  Besides  these  the
appellant remained absent which were converted into the leave  of  the  kind
due. In these circumstances, it is fully proved that  the  appellant  is  an
habitual  defaulter.  His  continued  misconduct  has   fully   proved   him
incorrigible and complete unfit for police service. In  these  circumstances
he does not deserve  any  leniency.  In  the  case  of  appellant  the  only
punishment of dismissal can meet the ends of justice.  Therefore,  the  plea
of leniency is also rejected.”





It appears, both, the learned Single Judge as well as  the  Division  Bench,
dealt with the challenge on an entirely different angle, perhaps on  account
of the misconceived contentions raised by the appellant on  the  claims  for
pension. The reliance sought to be placed on Ghanshyam Dass Relhan v.  State
of Haryana and others[1] is of no assistance. In that case,  this  Court  in
fact  considered  the  difference  between  dismissal   from   service   and
resignation from service for the purpose of pensionary benefits and  it  was
held that the employee, on resignation being accepted, was  entitled,  under
the relevant rules, for retirement benefits, subject to his  completing  the
prescribed service. That decision apparently does not have any relevance  in
the case of the appellant. There cannot be any dispute  that  the  dismissal
from service entails forfeiture of  past  service  as  per  the  unambiguous
provisions  under  the  Punjab  Civil  Services  Rules,   1989.   The   only
contention, which should probably have weighed with the Court,  was  on  the
quantum of punishment in  the  given  factual  situation.  It  was  in  that
background,  this  Court  issued  a  limited  notice   on   04.04.2014   for
considering the only question of quantum of punishment.

It is not in serious dispute that the appellant  is  a  serious  patient  of
tuberculosis. According  to  the  disciplinary  authority  as  well  as  the
appellate authority, the appellant became completely unfit  for  service  in
view of the background of the unauthorized absence on many  occasions.  Once
a person  is  found  unfit  for  service  on  account  of  intermittent  and
unauthorized absence for  which  the  delinquent  though  has  a  reasonable
explanation, no doubt, there is  no  point  in  continuing  him  in  service
either by  reverting  him  or  by  imposing  punishments  like  stoppage  of
increment, etc. But the question is, whether dismissal is  the  only  option
in such situations where an employee is found unfit for service. We have  no
doubt in our mind that indiscipline of any sort cannot be tolerated  at  all
in a disciplined force. However, in the factual background of the  appellant
which we have referred to above, the disciplinary authority or at least  the
appellate authority, should have considered whether a punishment other  than
dismissal would have been appropriate and  whether  dismissal  is  the  only
punishment available and appropriate in the  circumstances.  The  fact  that
different punishments are prescribed under the rules shows that there  is  a
discretion vested on the competent authority to decide what  should  be  the
proper punishment taking note of the nature of misconduct, its  gravity  and
its impact on the service. Having regard to the facts and  circumstances  of
each case, the disciplinary authority has  to  take  a  proper  decision  on
punishment.

Having regard to the fact that the disciplinary proceedings  were  initiated
in the year 1994, and having regard to the prolonged litigation, we  do  not
find it proper to remand the  matter  to  any  of  the  authorities,  either
original or appellate. The authorities having  found  the  appellant  to  be
unfit to continue in Police Service, we are of the view that the  punishment
of compulsory retirement, which is  also  a  prescribed  punishment,  should
have  been  the  appropriate  one  to  be  imposed  in  the   circumstances.
Therefore, we set aside the order passed by the  disciplinary  authority  as
confirmed by the appellate authority on the punishment of dismissal  of  the
appellant and order that the appellant be treated  as  compulsorily  retired
from service  from  the  date  of  the  original  order,  i.e.,  22.11.1994.
Needless also to say that, in case the appellant is  otherwise  entitled  to
any consequential reliefs on that account, the same shall follow.

The appeal is disposed of as above. There shall be no order as to costs.

                                                              ..…….…..…………J.
               (T. S. THAKUR)


                                                                ..……………………J.
                 (KURIAN JOSEPH)
New Delhi;
September 30, 2015.
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[1]    (2009) 14 SCC 506

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                                                                  REPORTABLE


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