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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.    

2. 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

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REPORTABLE

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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.”  

3. 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.

4. It is not in dispute that the appellant had put in around

fifteen  years  of  service  prior  to  his  termination.  The  charge

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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 of 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  of  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  afects  in  the  maintenance  of  law  and order.

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

5.  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.”  

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6. It appears, both, the learned Single Judge as well as the

Division Bench, dealt with the challenge on an entirely diferent

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 others1 is of no assistance. In that case, this

Court in fact considered the diference 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.  

1 (2009) 14 SCC 506

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7. 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  diferent  punishments  are

prescribed  under  the  rules  shows  that  there  is  a  discretion

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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.  

8. 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.  

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9. 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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