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Ex-Constable Mahinder Singh v. State of Haryana& Ors - RSA-4134-2003 [2006] RD-P&H 1284 (1 March 2006)


Case No. : R.S.A.No.4134 of 2003

Date of Decision : February 23, 2006.

Ex-Constable Mahinder Singh .... Appellant Vs.

State of Haryana& others .... Respondents Coram : Hon'ble Mr.Justice Viney Mittal.

* * *

Present : Mr.Jai Vir Yadav, Advocate

for the appellant.

Ms.Ritu Bahri, Advocate, DAG, Haryana.


The plaintiff has lost concurrently before the two courts below.

He filed a suit for declaration challenging the order dated March 02, 1994, whereby the plaintiff had been dismissed from service for having remained absent from duty for 104 days. It was claimed by the plainitff that the aforesaid order of dismissal was illegal, bad and violative of principles of natural justice and he was entitled to be reinstated in service.

The defendants contested the suit and claimed that the plaintiff had remained absent for a period of 104 days and police department, being a disciplined force, considered the absence of the plaintiff as an act of gravest misconduct. In these circumstances, the plaintiff was chargesheeted. A regular departmental inquiry was held against him. The plaintiff never participated in the departmental proceedings and was proceeded against ex- parte. In these circumstances, the Inquiry Officer found the charges against the plaintiff proved and on the basis of the report of the Inquiry Officer, order of punishment was passed. The defendants also pleaded that plaintiff was a habitual absentee right from the year 1989 onwards.

R.S.A.No.4134 of 2003 : 2 :

The learned trial court, on the basis of evidence available on record, found that plaintiff had remained absent and on account of the aforesaid fact, he was proceeded against departmentally. An Inquiry Officer was appointed. The plaintiff chose not to appear in the inquiry proceedings and was proceeded against ex-parte. On submission of Inquiry Report, a show cause notice was issued to the plaintiff. It was at this stage, for the first time that the plaintiff filed reply to the above show cause notice.

Thereafter, the competent authority passed the order of dismissal.

The suit filed by the plaintiff was dismissed by the learned trial court. He took up the matter in appeal. The learned first appellate court re- appraised the evidence on record. The learned first appellate court also noticed that the departmental inquiry had been conducted in accordance with the rules. The plaintiff was proceeded against ex-parte in the aforesaid inquiry proceedings and the aforementioned order was passed keeping in view the service record of the plaintiff and also in accordance with the rules.

Consequently, the appeal filed by the plaintiff was also dismissed.

Shri Jai Vir Yadav, learned counsel appearing for the plaintiff- appellant, has argued that after the inquiry proceedings, the plaintiff had been served a show cause notice for awarding the punishment. The plaintiff had replied to the aforesaid show cause notice, but before passing an order of punishment, no personal hearing was afforded to the plaintiff.

Therefore, the order of punishment was in violation of principles of natural justice. It has further been argued that the past record of the plaintiff had been taken into consideration but the said fact was not so mentioned in the show cause notice. It has also been argued that length of service of the plaintiff has not been taken into consideration.

Having given my thoughtful consideration to the contentions of the learned counsel, I do not find any merit in the same.

Both the courts below have concurrently found that the plaintiff had remined absent from duty. This fact is not even disputed by the plaintiff R.S.A.No.4134 of 2003 : 3 :

himself. Having remained absent from duty for a period of 104 days, a departmental inquiry was initiated against the plaintiff and he even chose not to participate in the aforesaid inquiry. Thereafter, proceedings were conducted ex-parte against him. A show cause notice, thereafter, was served upon him before awarding the punishment. It was at that time, that for the very first time, the plaintiff chose to send his reply. An order of punishment was passed on the basis of inquiry report submitted by the Inquiry Officer.

The argument of the learned counsel that the plaintiff was not given any personal hearing, is devoid of any merit inasmuch as no rule has been pointed out to show that any personal hearing was required, before the order of punishment was to be passed. Even if it be taken that the plaintiff had demanded that a personal hearing be granted to him, still, nothing has been shown that the plaintiff could improve his case in any manner before the punishing authority. Nothing has been shown that any prejudice has been caused to the plaintiff by not affording him any personal hearing by the punishing authority. The punishing authority had examined the entire material available on the record. Quantum of punishment has been fixed keeping in view his service record. It is also apparent from the stand taken by the defendants that he was a habitual absentee. The plaintiff, being a member of police force, his absence cannot be said to be countenanced.

In these circumstances, the findings recorded by both the courts below cannot be said to be erroneous in any manner.

It is well settled that a civil court can not sit in appeal over the inquiry proceedings or an order of punishment passed by the competent authority.

Nothing has been shown that the findings recorded by both the courts below suffer from any infirmity or are contrary to the record.

No question of law, much less any substantial question of law, arises in the present appeal.


February 23, 2006 ( VINEY MITTAL )

monika JUDGE


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