IMPORTANT POINT
There is no conflict between Harihar Goel case 1969 SLR 274 (SC) and Bakshish Singh case 1998(8) SCC 222 on termination of employment on the charge of termination of employment for unauthorised habitual absence.

Headnote:(i) Delhi Police Act, 1978-Section 21-Domestic enquiry against appellant Maan Singh for unauthorised absence-He was found a habitual absentee and did not take any lesson from previous punishments-Disciplinary authority dismissed him from service-Confirmed by Tribunal and High Court-Appeal to Supreme Court-Contention that the present case is covered by Bakshish Singh case 1998(8) SCC 222 which has impliedly overruled Harihar Goel case, 1969 SLR 274 (SC)-Whether correct? (No) -Appeal dismissed.
       Held : The decision of this Court in Bakshish Singh s case is not an authority for the proposition that the order terminating the employment cannot be sustained inasmuch as in the later part of the same order the disciplinary authority also regularised unauthorised absence from duty by granting an employee leave without pay. In our view, thus, there is no conflict in this regard with the decision in Harihar Gopal s case. (Para 6)
       Held finally : The instant case fully falls within the ratio of the decision of this Court in Harihar Gopal s case and following the said decision, we uphold the view taken by the High Court. Hence, this appeal stands dismissed (Para 9)
       (ii) Punjab Police Manual, 1934, Vol. II-Rule 16(2)(i)-Dismissed on charge of habitual absence for long periods on several occasions unauthorisedly-Whether 16.2(1) does not warrant an order of dismissal?
       Held : Relying on State of Punjab & Ors. vs. Ram Singh Ex-Constable, 1992 (4) SCC 54, one of the arguments advanced before us is that it is only in cases where the misconduct is of gravest kind an order of dismissal shall be made. This case was decided in the context of Rule 16.2(1) of the Punjab Police Manual, 1934, Vol. II. The said Rule reads as follows :-
       "Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service, in making such an award regard shall be had to the length of service of the offender and his claim to pension."
       After analysing the said provision, this Court in Ram Singh s case held that Rule 16.2(1) consists of two parts, firstly, dismissal shall be awarded for the gravest acts of misconduct and secondly, cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The second part is referable to a misconduct which, by itself, may not warrant an order of dismissal and may be a ground to take a lenient view of giving an opportunity to reform and even after giving such opportunities, if the delinquent officer proved to be incorrigible and found completely unfit to remain in service then in order to maintain discipline in the service appropriate punishments can be given. Therefore, when the charge against the appellants in each of these cases is habitual absence for long periods on several occasions unauthorisedly, the view taken by the disciplinary authority is justified. Hence, these appeals and special leave petitions stand dismissed. (Paras 11 and 12)

JUDGMENT

Rajendra Babu, J.-Civil Appeal No. 2531/2001

The appellant in this appeal was serving as a Constable in Delhi Police. A departmental enquiry was initiated against the appellant by an order made on 11-11-1991 under Section 21 of the Delhi Police Act, 1978. The allegation against him is that while he was posted at Police Station Chanakya Puri, New Delhi he proceeded to avail medical rest for three days on 31-1-1990; that he was to report back on 2-2-1990 when he again extended his leave till 9-2-1990; that again he further sought seven days medical leave; that he was due to report back on duty on 16-2-1990, but he did not resume his duty nor sent any information nor submitted application for further medical leave and thus he was marked absent; that thereafter, a notice was sent to his native place through the Superintendent of Police, Ghaziabad, U.P., to the effect that he remained absent from duty; that though he received that notice on 23,4.1990, he did not respond to the same nor did he send any information nor resumed duty; that in these circumstances, a departmental enquiry was initiated; that an inspector was authorised to conduct the enquiry and he got served the copies of the summary of allegations, list of witnesses with the gist of evidence and documents at his residence; that Enquiry Officer tried his best to secure the presence of the appellant to participate in the proceedings but in vain; that after obtaining orders from the competent authority to conduct the proceedings of the departmental enquiry ex parte, he proceeded further; that the Enquiry Officer completed the enquiry proceedings and submitted his findings with the conclusion that the charge of unauthorised and wilful absence from duty was established; that a copy of the findings of the Enquiry Officer was sent to the residence of the appellant with the directions to represent his case against the findings of the Enquiry Officer within a period of 15 days from 5.1.1992 and he submitted his response on 10.2.1992; that he was informed that if he wishes to be heard in person, he may do so on 28.2.1992; that though he received the said communication on 26.2.1992, he did not appear before the disciplinary authority before passing of final order in the departmental enquiry. It was noticed that he remained unauthorisedly absent from duty for more than 2 years continuously without any intimation to the department or submissions of any medical papers in support of his illness. The disciplinary authority held that absence of the appellant from duty was unauthorised and wilful and these facts were fully established in the enquiry; that he had absented himself unauthorisedly on 21 different occasions from the date of his enlistment in the department on 10.7.1978; that in spite of several punishments for lapse of absence on the said 21 occasions, he did not improve himself; that this indicated that he was a habitual absentee and did not take any lesson from the previous punishments awarded to him. Bearing these facts in mind, the disciplinary authority dismissed the appellant from service by an order made on 13.3.1992. The appellant filed an appeal against the said order of dismissal to the Additional Commissioner of Police, New Delhi range but the same was rejected by an order made on 18.9.1992. Thereafter, the appellant filed an Original Application No. 99/93 on the file of the Central Administrative Tribunal (hereinafter referred to as the Tribunal ), which also stood, dismissed. The appellant thereafter filed a writ petition in the High Court challenging the order of the Tribunal dismissing his application. The High Court having dismissed the said writ petition, the appellant has come up in this appeal by special leave.

2. Firstly, it was urged before the Tribunal that the appellant had been appointed by the Commandant of Police who is equivalent in rank to Deputy Commissioner of Police, whereas the impugned order of dismissal had been passed by an Additional

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2003 Supreme(SC) 197

IMPORTANT POINTThere is no conflict between Harihar Goel case 1969 SLR 274 (SC) and Bakshish Singh case 1998(8) SCC 222 on termination of employment on the charge of termination of employment for unauthorised habitual absence.

Cases Referred (7)

IMPORTANT POINT
There is no conflict between Harihar Goel case 1969 SLR 274 (SC) and Bakshish Singh case 1998(8) SCC 222 on termination of employment on the charge of termination of employment for unauthorised habitual absence.