Point of Law: Punishment of dismissal of service should be awarded for gravest act of misconduct.

ORDER :

Being aggrieved and dissatisfied with the order dated 1.07.2010 (Annexure P-16), passed by Director General of Police, Himachal Pradesh, whereby revision petition having been filed by the petitioner, laying therein challenge to order dated 2.03.2009 (Annexure P-14) passed by Deputy Inspector General of police, Southern Range, Shimla, Himachal Pradesh, whereby aforesaid authority while upholding the order dated 4.03.2008 passed by Disciplinary authority- Superintendent of Police, Sirmour at Nahan, thereby dismissing the petitioner from service, rejected the statutory appeal against the order of dismissal filed by the petitioner (Annexure P-13), petitioner has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following main reliefs:-

“(a). To issue a writ of certiorari or direction in nature thereof, quashing the impugned orders dated 5.03.2008, 2.03.2008 and 1.07.2010 being Annexures P-12, P-14 and P-16 of the writ petition respectively, as unconstitutional and illegal and contrary to the law;

(b). To issue a writ of mandamus, appropriate writ order or direction in nature thereof, directing the respondent department to reinstate the petitioner with effect from the illegal removal and low the petition are premature retirement with effect from 30/06/2008 with all the consequential benefits alongwith interest @ 18% per annum.”

2. Precisely, the facts of the case, which may be relevant for adjudication of the case at hand are that the petitioner was appointed as Constable in the year 1986 and thereafter he was promoted as Head Constable in July, 1993 and since then he had been uninterruptedly working in the police department till the time he was removed from the service vide order dated 4.03.2008(Annexure P-12) on account of his having remained absent from duty. While discharging duty of Head Constable at CIA Nahan, petitioner proceeded on medical leave for forty five days with effect from 14.04.2006 and as per sanctioned leave, petitioner was to resume office on 29.05.2006 but since he was unable to resume duty on account of his ailment, he telegraphically informed the department on 29.06.2006 that he was unable to resume duty till the time he was declared fit by the medical authorities. Record reveals that Office of Superintendent of Police, Sirmour at Nahan vide communications dated 6.06.2006 and 30.09.2006 advised the petitioner to resume duty but fact remains that petitioner not joined services and replied to the department that he was unable to report to the duty till the time he recovers. But respondents vide communication dated 4.11.2006, called upon the petitioner to furnish medical record, if any, with regard to his illness. Though, on 8.11.2006 petitioner furnished medical record to Superintendent of Police, Sirmour at Nahan (Annexure P-1) but aforesaid authority without considering the documents made available by the petitioner, passed order dated 13.11.2006 (Annexure P-2), thereby putting the petitioner under suspension. Vide aforesaid order aforesaid authority, who is Disciplinary authority/Appointing authority of the petitioner, directed District Inspector, Amar Singh, to initiate disciplinary proceedings against the petitioner for his having remained absent from duty without sanctioned leave.

3. In compliance to aforesaid directions, District Inspector, Amar Singh vide order dated 27.12.2006 furnished charge sheet against the petitioner (Annexure P-3), stating therein that why action be not taken against him for his having remained absent from the duty. Petitioner replied to aforesaid charge sheet vide communication dated 3.01.2007 (Annexure P-4), wherein he reiterated that he was unable to report to the duty on account of his illness, which fact is substantiated from medical record made available by him to the Disciplinary authority vid