Summary
Dismissal of a Commando Force constable for wilful unauthorised absence of 37 days upheld. The disciplinary authority's reference to his earlier punishments for absence was not the effective reason for dismissal but only added weight to a decision founded on the proved charge, so the rule in K. Manche Gowda requiring prior notice of reliance on past conduct was not attracted; the dismissal fell within the first limb of Rule 16.2(1) of the Punjab Police Rules, 1934, where length of service need not be considered.
Issues
- Whether the dismissal order was vitiated because it referred to the respondent's past misconduct, which had not been disclosed in the show cause notice, in light of State of Mysore v. K. Manche Gowda.
- Whether the disciplinary authority was bound under Rule 16.2(1) of the Punjab Police Rules, 1934 to take into account the respondent's length of service and claim to pension before dismissing him.
Provisions considered
- Rule 16.2(1), Punjab Police Rules, 1934Dismissal is to be awarded only for the gravest acts of misconduct, or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness, regard being had to length of service and claim to pension. Following State of Punjab v. Ram Singh, the Court read the rule as having two disjunctive parts; length of service must be weighed only under the second (cumulative-misconduct) limb, not where dismissal is for a gravest act of misconduct. The respondent's dismissal for proved wilful absence fell within the first limb. (¶¶ 28, 29, 30, 32, 33)
Held
- Under K. Manche Gowda, where the past conduct of an employee is the basis for imposing punishment, the department must disclose that the past record will be taken into account. But, as explained in Bishamber Das Dogra, in cases of grave misconduct or indiscipline the authority may consider the indisputable past record of the employee to add weight to a decision founded on the proved charge, and there is no hard-and-fast rule that earlier misconduct not mentioned in the chargesheet cannot be considered (Mohd. Taher Ali; India Marine Services). (¶¶ 19, 20, 23, 24)
- The disciplinary authority perused the enquiry report, agreed with the finding of guilt on the charge of unauthorised absence, noted that the respondent had not replied to the show cause notice, and only then mentioned his earlier punishments and the forfeiture of 17 years' service. That reference was independent of the misconduct found proved and was not the effective reason for dismissal; it merely added weight to the decision. The High Court was therefore not justified in applying K. Manche Gowda to set aside the concurrent judgments of the trial court and first appellate court. (¶¶ 19, 31, 32, 33)
- Rule 16.2(1) consists of two independent parts: dismissal for the gravest act of misconduct, and dismissal as the cumulative effect of continued misconduct proving incorrigibility, in which case length of service and claim to pension must be considered. The present dismissal was for a grievous act of misconduct by a member of a disciplined force and was not based on the cumulative-effect limb, so the rule did not require the length of service to be weighed and the High Court's reliance on it was misplaced. (¶¶ 28, 29, 30, 32, 33)
- The High Court erred in treating the respondent as a long-serving employee: he served less than seven years. The mention of forfeiture of 17 years' service in the dismissal order related to punishments imposed in earlier proceedings for unauthorised absence, affecting increments he would have earned had he remained in service. (¶¶ 12.1, 27)
- Absence from duty on several occasions within a short tenure of about seven years in a disciplined force is gross indiscipline; the respondent had been penalised three times for absence and was chargesheeted on the fourth occasion, declined to cross-examine departmental witnesses or lead defence evidence, and the procedure and principles of natural justice were duly followed. No illegality attached to the dismissal. Mohd. Yunus Khan, where the tribunal itself relied on subsequent misconduct, was distinguishable. (¶¶ 25, 26, 33)
Result
Appeal allowed. Judgment of the High Court dated 04.08.2010 in the second appeal set aside; the respondent's suit for declaration and mandatory injunction stands dismissed. Parties to bear their own costs; pending applications disposed of.