The
State of Punjab & Ors Vs. Bakhshish Singh
[1997] INSC 499 (5 May 1997)
K.
RAMASWAMY, D.P. WADHWA.
ACT:
HEADNOTE:
O R D
E R THE 5TH DAY OF MAY, 1997 Present, Hon'ble Mr. Justice K. Ramaswamy Hon'ble
Mr. Justice D.P.Wadhwa A.S. Sohal, Adv. for R.S. Sodhi, Adv. for the
appellants.
O R D
E R The following order of the Court was delivered:
Though
all steps have been taken to ensure the service of notice, the respondent could
not be contacted for service. Even the last know address was tapped to effect
the service; but that has also proved abortive. Under these circumstances,
notice must be deemed to have been served.
Leave
granted.
The
respondent, who was a Constable in the police service of the state of Punjab, absented himself from duty for a
long period, i.e., from November
7, 1986 to March 1, 1988, without any leave. As a result,
disciplinary action was conducted. The disciplinary authority on the basis of
finding of dereliction of non-reporting for duty, dismissed him from service.
The ci trial court dismissed the suit filed by the respondent. On appeal, the
first appellate Court remanded the matter for reconsideration by the trial
court on the point of punishment. The High Court has dismissed the Second
Appeal No. 155/96 summarily by its judgment and order dated August 21, 1996. Thus, this appeal by special
leave.
The
appellate court recorded the finding as under:
"I
have gone through the above authorities and am of the considered opinion that
although the plaintiff was admittedly guilty of misconduct in absenting himself
but misconduct could not be classified as the gravest act of misconduct within
the meaning of the sub-rule. The contention appears to be well-founded. It is
true that, generally speaking, it is for the punishing authority to determine the
seriousness of punishment and it is not within the ambit of the powers of this
Court to interfere with the direction of the authority. But then there rule and
that is that the court will strike down an order which has been passed illegal
only and arbitrarily. In the present case, it was incumbent on the punishment
of dismissal, to come to a finding that the misconduct attributed to the
respondent was a 'gravest act of misconduct'. It is true that in the context in
which that expression is used it does not mean an act of misconduct and means,on
the other hand, an act denoting a very high degree of misconduct as opposed to
a merely grave or a very grave act of misconduct. But then it appears that the
defendants when awarding the punishment were not alive to the provisions of the
sub- rule otherwise he would not only not have awarded the punishment of
dismissal without coming to a finding that the misconduct attributed to the
respondent was of the Gravest type but would at all for the reasons that the
misconduct even though grave was not of the Gravest type. The lack of finding
about the misconduct being of thre requisite tupe makes the impugned order
arbitrary in nature and, therefore, liable to be quashed." It is settled
legal position that it is for the disciplinary authority to pass appropriate
punishment; the civil Court cannot substitutte its own view to that of the
disciplinary as well as appellate authority on the nature of the punishment to
be imposed upon the delinquent officer. In view of the finding of the appellant
Court that it is a grave misconduct, the appellate Court ought not to have
interfered with the decree of the trial Court. The High Court dismissed it
without application of the mind and ignoring the settled legal principles.
The
appeal is accordingly allowed. The orders of the High Court and the appellate
Court stand set aside and that of the trial Court stands confirmed No. costs.
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