Supreme Court of India
Rajinder Kumar vs State Of Haryana & Anr on 30 September, 2015Author: ..…….…..…………J.

Bench: T.S. Thakur, Kurian Joseph



(Arising from S.L.P. (C) No. 10039/2014)

Rajinder Kumar … Appellant (s)


State of Haryana and another … Respondent (s)



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

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.


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




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