RAJINDER KUMARversusSTATE OF HARYANA AND ANOTHER

                   (2015) 9 S.C.R. 429


                   RAJINDER KUMAR                           A
                            v.
          STATE OF HARYANA AND ANOTHER
              (Civil Appeal No.8064 of 2015)
                 SEPTEMBER 30, 2015                         B

       [T.S. THAKUR AND KURIAN JOSEPH, JJ.]

     Service law - Dismissal from service - Constable
remained absent from duty - Disciplinary Authority as also C
appellate authority found him unfit for service -·Penalty of
dismissal from service - Writ petition by constable - The
learned single Judge of the High Court set aside the
punishment order and remanded back the matter to the
Disciplinary Authority - Division Bench set aside the order 0
of the learned single judge - On appeal, held: 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 E
imposing punishments like stoppage of increment, etc. -
Indiscipline of any sort cannot be tolerated at all in a
disciplined force - However, in view of the factual background
of the constable, authorities should have considered whether
a punishment other than dismissal would have been . F
appropriate - On facts, it is not proper to remand the matter
to any of the authorities - Authorities having found the
appellant to be unfit to continue in Police Service, the
punishment of compulsory retirement, which is also a
prescribed punishment, should have been the appropriate . G
one - Thus, the order of dismissal of the constable is set
aside - Constable be treated as compulsorily retired from
service from the date of the original order.
                           429                              H
430        SUPREME COURT REPORTS                  [2015] 9 S.C.R.


A         Ghanshyam Dass Re than v. State of Haryana and others
      2009 (10) SCR 603: (2009) 14 SCC 506 - referred to.

                        Case Law Reference

B       2009 (10) SCR 603        referred to. Para 6

          CIVILAPPELLATE JURISDITION: Civil Appeal No. 8064
      of2015.

          From the Judgment and Order dated 22.02.2013 of the
C     High Court of Punjab and Haryana at Chandigarh in LPA No.
      1077 of 2010 in CWP No. 19992 of 2009.

         Manjit Singh, Vivekta Singh, Satyendra Kumar for the
      Appellant.    ·
D
         Sanjay Kumar Visen, Rajesh Kumar Singh for the
      Respondents.

          The Judgment of the Court was delivered by
E
          KURIAN, J.: 1. Leave granted.

         2. The appellant was appointed as a constable under the
   first respondent-State on 24.12.1979. On the ground that he
F 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
G of the Superintendent of Police, Kurukshetra, Haryana. The
  ·appeal before the 0.1.G. of Police, Ambala, Haryana was
   dismissed, and that order was challenged before the High
   Court in C.W.P. No. 16511of1997. The said Writ Petition was
   disposed of by Judgment dated 26.05.2009. The operative
H portion of the judgment reads as follows:
        RAJINDER KUMAR v. STATE OF HARYANA                      431
                    [KURIAN, J.]

    "It is, thus, clear that the finding regarding the petitioner A
    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 B
    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 C
    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."
                                                                   D
     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.                   E

     4. 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, F
that he was taking treatment in the District Chest TB. 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 G
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     H
432      . SUPREMECOURTREPORTS                       (2015] 9 S.C.R.


A         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.
B         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
c         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.
D         I thus award Constable Rajinder Kumar, 343/KKR penalty
          of dismissal from serv'ice with immediate effect."

            5. In appeal, the appellant, inter alia, pleaded for mercy
      and alteration of the punishment. His plea was rejected by
E     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
F         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 Yi years. He remained absent
G         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 0.8. No. 530/94. He
          was also given punishment of stoppage of one increment
H
               RAJINDER KUMAR v. STATE OF HARYANA                           433
                           [KURIAN, J.]

           vide O.B. No. 523/94 for consuming liquor on duty.                A
           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             B
           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."
                                                                             c
           6. It appears, both, the learned Single Judge as well as the
Divisi9n 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 D
Haryana and others111is 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, E
for retirement benefits, subject to his completing the prescribed
service. That decision apparently does not have any relewnce
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 F
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 G
only question of quantum of punishment.
           7. It is not in serious dispute thatthe appellant is a serious
patient oftuberculosis.According to the disciplinary authority
as well as the appellate authority, the appellant became
                                                                             H
1
    ·   (2009) 14 sec so6
434       SUPREME COURT REPORTS                    (2015] 9 S.C.R.


A   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 reasonab.le explanation, no doubt, there is no point ~n
B 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
C 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
0
    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
E 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
F 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
G 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
H confirmed by the appellate authority on the punishment of
        RAJINDER KUMAR v. STATE OF HARYANA                       435
                    [KURIAN, J.]

dismissal of the appellant and order that the appellant be A
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.
                                                                  B
    9. The appeal is disposed of as above. There shall be no
order as to costs.

NidhiJain                                  Appeal disposed of.