123 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No. 1876 of 2000 (O&M) Date of Decision: 16.07.2026 Subhash Chander .......... Appellant Versus State of Haryana .......... Respondent CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA Present: Mr. Yagyadeep, Advocate, for the appellant. Ms. Komal Sharma DAG, Haryana. **** HARKESH MANUJA, J. (ORAL) 1) By way of present Regular Second Appeal, challenge has been laid to the judgment and decree dated 31.01.2000 passed by Additional Dis- trict Judge, Hisar (hereinafter referred to as "the First Appellate Court"), whereby the appeal preferred by the respondent-defendant was allowed and the judgment and decree dated 24.02.1999 passed by the learned Civil Judge (Junior Division), Hisar (hereinafter referred to as "the Trial Court"), decreeing the suit, was reversed, thus, dismissing the suit filed at the in- stance of the plaintiff-appellant. FACTS 2) The appellant was enrolled as a Constable in Haryana Police on 01.10.1989. He was granted casual leave for five days with effect from SONIKA 2026.07.28 17:00 I attest to the accuracy and authenticity of this document RSA No. 1876 of 2000 (O&M) -2- 02.09.1995 to 07.09.1995. On expiry of the sanctioned leave, the appellant neither resumed duty nor sought any extension or permission to remain ab- sent, and the Superintendent of Police, Hisar, accordingly ordered a depart- mental enquiry against him. In the course of that enquiry, a summary of alle- gations, list of witnesses and list of documents, each dated 29.09.1995, were prepared, setting out the appellant's continued unauthorised absence as well as his past record of unauthorised absence on more than one occa- sion, for which he had earlier been proceeded against. 2.1) As the enquiry proceeded, the appellant was served with suc- cessive notices to appear before the Enquiry Officer on 10.10.1995, 17.10.1995 and 19.10.1995. He appeared on 03.11.1995, when the Enquiry Officer directed him to report for duty at Police Station Jakhal by 13.11.1995; the appellant did not comply. Further notices were issued for 10.11.1995, but the appellant did not join the proceedings. The Enquiry Offi- cer sought and obtained the permission of the Superintendent of Police, Hisar, to proceed ex parte against him. Even thereafter, when the Enquiry Officer prepared a formal charge-sheet and sent the same to appellant at his home address on 16.12.1995, the appellant appeared before the En- quiry Officer, sought adjournment on the ground of his wife's illness, and was granted a further date, 23.12.1995, with direction to produce medical certificates. The appellant did not appear on that date, nor on the next date fixed, i.e. 05.01.1996, nor did he ever produce any certificate regarding his wife's illness or otherwise explain his continued absence from the enquiry. SONIKA 2026.07.28 17:00 I attest to the accuracy and authenticity of this document RSA No. 1876 of 2000 (O&M) -3- 2.2) The Enquiry Officer submitted his report dated 12.01.1996 holding the charge of unauthorised absence proved. The Superintendent of Police, Hisar, accepted the report, held the appellant guilty of the gravest misconduct and found him incorrigible, and dismissed him from service by order dated 07.03.1996. The departmental appeal filed by the appellant be- fore the Deputy Inspector General of Police, Hisar Range, was dismissed on 04.12.1996, and the revision filed before the Director General of Police, Haryana, was dismissed on 28.03.1997. Hence, the suit for declaration that the order of dismissal dated 07.03.1996, the appellate order dated 04.12.1996 and the revisional order dated 28.03.1997 were illegal, void and not binding was filed at the instance of the plaintiff. 3) Upon notice, the suit was contested by the State, which raised preliminary objections that it was barred by limitation; the plaintiff was estopped by his own act and conduct from filing the suit; had no locus standi, and the suit was bad for non-joinder of necessary parties. On merits, it was contended that no concurrence under Rule 16.38 of the Punjab Police Rules, 1934 (hereinafter referred to as "the 1934 Rules"), was required, since the charge did not relate to any criminal offence in connection with the plaintiff's official relations with the public and that the proper procedure un- der the Rules had been followed in conducting the enquiry. It was further contended that despite repeated reminders, the plaintiff had deliberately avoided appearing before the concerned authorities and that the orders of dismissal dated 07.03.1996, the appellate order dated 04.12.1996, and the SONIKA 2026.07.28 17:00 I attest to the accuracy and authenticity of this document RSA No. 1876 of 2000 (O&M) -4- revisional order dated 28.03.1997 were consequently in accordance with the 1934 Rules. 4) On the pleadings, the learned trial Court framed the following issues:- “(1) Whether the orders dated 07.03.1996, 04.12.1996 and 28.03.1997 passed by defendant No.3, DIG, DGP, are illegal, bad in law and not binding on the rights of the plaintiff? OPP. (2) Whether the suit is time barred? OPD. (3) Whether the plaintiff is estopped to file the present suit by his own conduct? OPD. (4) Whether the plaintiff has no locus standi to file the present suit? OPD. (5) Whether the suit of the plaintiff is bad for mis-joinder and non-joinder of neces- sary parties? OPD. (6) Relief.” 5) The learned trial Court, vide judgment and decree dated 24.02.1999, decreed the suit to the extent that the plaintiff would be treated as if in service throughout, though the intervening period was to be treated as "dies non", and the plaintiff would accordingly not be entitled to any salary for that period. 6) Aggrieved thereof, the defendant-State filed the first appeal, which was allowed vide judgment and decree dated 31.01.2000, holding that the appellant was rightly dismissed from service, thereby, reversing the judgment and decree passed by the learned trial Court. Hence, the present Regular Second Appeal. CONTENTIONS ON BEHALF OF APPELLANT-PLAINTIFF 7) Learned counsel for the appellant-plaintiff submits that concur- rence of the District Magistrate under Rule 16.38 of the 1934 Rules was SONIKA 2026.07.28 17:00 I attest to the accuracy and authenticity of this document RSA No. 1876 of 2000 (O&M) -5- mandatory before the departmental enquiry and its absence rendered the entire enquiry vitiated. He further contends that the gist of his previous ad- verse record was never supplied to him as required under Rule 16.24(vii), depriving him of a meaningful opportunity to explain the same before pun- ishment was imposed. 7.1) He further submits that although the dismissal order recited the conclusion of "gravest misconduct", the Punishing Authority never recorded any reasoned finding as to why the appellant's absence met that threshold under Rule 16.2(1), and that the First Appellate Court, despite noticing the authorities cited on this point, failed to deal with the argument at all. It is also submitted that no show-cause notice or opportunity of personal hearing was afforded to him before the final order was passed, the matter having been decided ex parte without due compliance with the principles of natural jus- tice. He thus, prays that the present appeal is to be allowed. ON BEHALF OF RESPONDENT -STATE 8) Per contra, learned counsel appearing on behalf of respondent- State submits that the judgments and decree passed by the learned First Appellate Court being based on proper appreciation of material facts thus, call for no interference and as such, present appeal is liable to be dis- missed. DISCUSSION AND REASONING 9) I have heard learned counsel for the parties and gone through the paper book and records of the case. SONIKA 2026.07.28 17:00 I attest to the accuracy and authenticity of this document RSA No. 1876 of 2000 (O&M) -6- 10) The contentions raised may conveniently be considered under three heads: (I) concurrence of the District Magistrate; (II) the appellant's previous record - its non-disclosure and its bearing on the finding of gravest misconduct and (III) adequacy of notice, personal hearing, and the ex-parte enquiry. I. RE: CONCURRENCE OF THE DISTRICT MAGISTRATE 11) For effective adjudication of the issue, the relevant portion of Rule 16.38 of the 1934 Rules, as applicable to Haryana, is extracted here- under:- "16.38. Criminal offences by police officers and strictures by Courts - Pro- cedure regarding. - (1) Immediate information shall be given to the District Magistrate of any complaint received by the Superintendent of Police, which indicates the commission by a police officer of a criminal offence in connection with his official relations with the public. The District Magistrate will decide whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected [Executive Magistrate]. (2) When investigation of such a complaint establishes a prima facie case, a judicial prosecution shall normally follow; the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded. When it is decided to proceed departmentally the procedure pre- scribed in rule 16.24 shall be followed. An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed." 11.1) A perusal of the above Rule shows that it obliges the Superin- tendent of Police to give immediate information to the District Magistrate of any complaint indicating the commission by a police officer of a criminal of- fence in connection with his official relations with the public and requires the concurrence of the District Magistrate, before the Superintendent of Police instead of proceeding for judicial prosecution, elects to proceed departmen- SONIKA 2026.07.28 17:00 I attest to the accuracy and authenticity of this document RSA No. 1876 of 2000 (O&M) -7- tally. The rule is thus confined, both in its opening words and in its object, to complaints of a criminal character made by or on behalf of the public against a police officer; it is not a general pre-condition attached to every depart- mental enquiry, irrespective of the nature of the charge. 11.2) A Co-ordinate Bench of this Court, in Devi Lal v. State of Haryana, 2019 SCC OnLine P&H 1473, considered an identical plea in the context of a departmental enquiry initiated against a police official for pro- longed unauthorised absence, and held as under: "7. The plea which has been taken by the learned counsel for the appellant with regard to the non-seeking/grant of approval by the District Magistrate as required under Rule 16.38 of 1934 Rules, the same is also not accept- able. Perusal of Rule 16.38 of 1934 Rules would show that the approval of the District Magistrate is only required when a criminal offence is alleged to have been committed by the police officer and he is to be prosecuted. Present is not such a case. Here is a case where enquiry which was initi- ated against the appellant – plaintiff was for deliberate absence from duty for 61 days. Rule 16.38 of 1934 Rules, therefore, would not be applicable to the case in hand." 11.3) Thus, in respectful concurrence with the view taken by the Co- ordinate Bench of this Court, Rule 16.38 of the 1934 Rules is attracted only where the police officer's alleged conduct discloses a criminal offence com- mitted in relation to the public and can have no application where the charge is one of internal indiscipline such as unauthorised absence from duty, which involves no complainant from the public and no offence "in connection with official relations with the public". The mere circumstance that Section 29 of the Police Act, 1861, renders wilful absence without leave a punish- able offence does not, without any complaint or grievance from a member of SONIKA 2026.07.28 17:00 I attest to the accuracy and authenticity of this document RSA No. 1876 of 2000 (O&M) -8- the public, convert the appellant's default into a criminal offence "in connec- tion with his official relations with the public" within the meaning of Rule 16.38 of the 1934 Rules. Thus, concurrence of the District Magistrate is held not to be a pre-condition to the departmental enquiry in the present case. II. RE: THE APPELLANT'S PREVIOUS RECORD: NON-SUPPLY OF GIST AND FINDING OF GRAVEST MISCONDUCT 12) The two grounds under this head arise out of the past instances of unauthorised absence of the appellant and are accordingly taken up to- gether. Rule 16.24(vii) of the 1934 Rules, relevant to the first ground is re- produced hereunder:- "(vii) The enquiring officer shall be proceed to pass orders of acquittal or punishment, if empowered to do so, or to forward the case with his finding and recommendations to an officer having the necessary powers. When- ever the officer passing the orders of punishment proposes to take into con- sideration the adverse entries on the previous record of the accused police officer, he shall provide reasonable opportunity to the defaulter to defend himself; and a copy or at least a gist of those entries shall be conveyed to the defaulter and he shall be asked to give such explanation as he may deem fit. The explanation furnished by the defaulter shall be taken into ac- count by the officer before passing orders in the case." 12.1) The rule thus requires that where adverse entries on the previ- ous record are proposed to be taken into account in awarding punishment, a copy or at least the gist of those entries be conveyed to the delinquent, with an opportunity to explain. A perusal of the record shows this requirement was in fact satisfied, the summary of allegations dated 29.09.1995 (Ex.D1), served upon the appellant along with the charge-sheet at the very inception of the enquiry, itself set out in detail his earlier instances of unauthorised ab- SONIKA 2026.07.28 17:00 I attest to the accuracy and authenticity of this document RSA No. 1876 of 2000 (O&M) -9- sence from 28.12.1990 to 31.12.1990, from 03.01.1991 to 04.01.1991, and from 14.06.1992 to 19.07.1992, together with the manner in which each had earlier been dealt with, whether by grant of leave or minor punishment. The gist of the adverse record was thus placed before the appellant from the outset and formed part of the material on which he was called upon, and failed, to offer any explanation. 13) Even assuming arguendo that the gist of previous misconduct had not been supplied, that alone would not make the dismissal illegal un- less the past record was the real basis of the punishment, rather than some- thing used merely to strengthen a conclusion already justified on other grounds. That, in turn, depends on simple question whether the appellant's present default, standing alone, amounted to "gravest misconduct" under Rule 16.2(1) of the 1934 Rules. Rule 16.2(1) of the 1934 Rules which is rel- evant is reproduced hereunder:- "16.2(1) 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." 13.1) A plain reading of the Rule reproduced above shows the rule consists of two parts: the first permits dismissal for the gravest act(s) of mis- conduct, simpliciter; the second permits dismissal as the cumulative effect of continued, lesser misconduct proving incorrigibility, and it is only under this second limb that the offender's length of service and claim to pension must additionally be considered. SONIKA 2026.07.28 17:00 I attest to the accuracy and authenticity of this document RSA No. 1876 of 2000 (O&M) -10- The Hon'ble Apex Court, interpreting this very Rule in State of Punjab & Ors. v. Ram Singh, Ex-Constable, (1992) 4 SCC 54, held as under:- "7. Rule 16.2(1) consists of two parts. The first part is referable to gravest acts of misconduct which entails awarding an order of dismissal. Undoubt- edly there is distinction between gravest misconduct and grave misconduct. Before awarding an order of dismissal it shall be mandatory that dismissal order should be made only when there are gravest acts of misconduct, since it impinges upon the pensionary rights of the delinquent after putting long length of service. As stated the first part relates to gravest acts of mis- conduct. Under General Clauses Act singular includes plural, "act" includes acts. The contention that there must be plurality of acts of misconduct to award dismissal is fastidious. The word "acts" would include singular "act" as well. It is not the repetition of the acts complained of but its quality, insid- ious effect and gravity of situation that ensues from the offending 'act'. The colour of the gravest act must be gathered from the surrounding or attend- ing circumstances. Take for instance the delinquent who put in 29 years of continuous length of service and had unblemished record; in thirtieth year he commits defalcation of public money or fabricates false records to con- ceal misappropriation. He only committed once. Does it mean that he should not be inflicted with the punishment of dismissal but be allowed to continue in service for that year to enable him to get his full pension. The answer is obviously no. Therefore, a single act of corruption is sufficient to award an order of dismissal under the rule as gravest act of misconduct. 8. The second part of the rule connotes the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and that the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The contention that both parts must be read together appears to us to be illogical. Second part is referable to a misconduct minor in character which does not by itself war- rant an order of dismissal but due to continued acts of misconduct would have insidious cumulative effect on service morale and may be a ground to take lenient view of giving an opportunity to reform. Despite giving such op- portunities if the delinquent officer proved to be incorrigible and found com- pletely unfit to remain in service then to maintain discipline in the service, instead of dismissing the delinquent officer, a lesser punishment of compul- sory retirement or demotion to a lower grade or rank or removal from ser- vice without affecting his future chances of reemployment, if any, may meet SONIKA 2026.07.28 17:00 I attest to the accuracy and authenticity of this document RSA No. 1876 of 2000 (O&M) -11- the ends of justice. Take for instance the delinquent officer who is habitually absent from duty when required. Despite giving an opportunity to reform himself he continues to remain absent from duty off and on. He proved him- self to be incorrigible and thereby unfit to continue in service. Therefore, taking into account his long length of service and his claim for pension he may be compulsorily retired from service so as to enable him to earn pro- portionate pension. The second part of the rule operates in that area. It may also be made clear that the very order of dismissal from service for gravest misconduct may entail forfeiture of all pensionary benefits. Therefore, the word 'or' cannot be read as "and". It must be disjunctive and independent. The common link that connects both clauses is "the gravest act/acts of mis- conduct." 14) There can be no doubt that habitual absenteeism tantamounts to gross violation of discipline as held by the Supreme Court in Union of India Vs. Bishamber Das Dogra reported in (2009) 13 SCC 102. The rel- evant portion thereof is extracted hereunder:- “26. It is settled legal preposition that habitual absenteeism means gross violation of discipline [vide Burn & Co. Ltd. v. Wormess, AIR 1959 SC 529; and L&T Komatsu Ltd. v. N. Udayakumar, (2008) 1 SCC 224)].” 15) In the light of the precedents discussed, the appellant's con- duct, as already narrated, satisfies the first limb of Rule 16.2(1) on its own terms: having availed sanctioned casual leave for five days in September 1995, he remained continuously absent without permission for a period of approximately six months until his dismissal on 07.03.1996, persisting in that absence even while the departmental enquiry into it was pending, disre- garding the Enquiry Officer's specific direction to resume duty, and repeat- edly failing to appear despite service of notice. This is not a case of an iso- lated, unexplained lapse but a continuing, wilful default by a member of a SONIKA 2026.07.28 17:00 I attest to the accuracy and authenticity of this document RSA No. 1876 of 2000 (O&M) -12- disciplined force which is sufficient by itself to constitute a gravest act of misconduct, without recourse to the second limb of the Rule or to the appel- lant's earlier record. 16) Moreover, the earlier record of three previous instances of unauthorised absence noticed above was, at best, invoked to reinforce this conclusion, and not to found it. The Hon'ble Apex Court, in materially similar circumstances involving unauthorised absence by a police constable, ad- dressed precisely this distinction in State of Punjab and others v. Ex. C. Satpal Singh, 2025 SCC OnLine SC 1848, holding as under:- "31. In light of the judicial precedents cited above, when the factual matrix of the present case is appreciated, it is seen that the reference to the fact of forfeiture of 17 years of service of the respondent as a result of his absence from service on previous occasions was in exclusion or independent of the misconduct for which the enquiry officer has found him guilty. The consider- ation of the past misconduct of the respondent was not the effective reason for dismissing him from the service. The disciplinary authority had men- tioned the past misconduct of the respondent only for adding the weight to the decision of imposing the punishment. 32. We have perused the show cause notice and the order of dismissal passed against the respondent. After going through the same, it is clear that penalty of dismissal is a consequence of proved misconduct. There- fore, the order impugned is within the first part of Rule 16.2(1) of the Rules. While passing the order dismissing the appeal, the disciplinary authority recorded the finding that the act of absence of the respondent from duty is a grievous act of misconduct. The respondent was appointed as a consta- ble in the Punjab Armed Forces and then transferred to the Commando Force, which is a disciplined force. The authority while passing the order has referred to his previous act of absence from duty besides proving a gravest act of misconduct leading to the order of dismissal. 33. In the facts of the present case, it is clear that the respondent was dealt by the department earlier on three occasions having remained absent from duty and the penalties were inflicted for the same. It is the fourth time when he remained absent to which, a chargesheet was issued and his guilt was SONIKA 2026.07.28 17:00 I attest to the accuracy and authenticity of this document RSA No. 1876 of 2000 (O&M) -13- found proved. He himself had not cross-examined the departmental wit- nesses and also had not produced any witness in his defense. Considering all these aspects and having found proved his misconduct, notice to show cause from dismissal was issued to the respondent. The disciplinary au- thority, while imposing the penalty, had merely referred the past conduct and also given weight to the gravest act of misconduct. The order of dis- missal is not based on the charge of "cumulative effect of continued mis- conduct proving incorrigibility and complete unfitness for police service". Therefore, mere reference of the past conduct would not amount to consti- tute dismissal of the respondent based on the second limb of Rule 16.2(1). In our view, the High Court was not justified to apply the principle of K. Manche Gowda (supra) while setting aside the judgment passed by the two Courts. As such, it is concluded that the dismissal of the respondent was based on gravest act of misconduct, for which he was dealt with by the dis- ciplinary authority following the procedure as prescribed and in due obser- vance of principles of natural justice, hence, we do not find any fault in the same." 16.1) Accordingly, the dismissal of appellant rests on the current, continuing default, which independently satisfies the standard of gravest misconduct; the reference to his three earlier instances of absence already disclosed to him at the inception of the enquiry, as noted above, did no more than add weight to that finding and was not its foundation. Thus, nei- ther the alleged non-supply of the gist of the previous entries, nor the al- leged absence of a finding of gravest misconduct, discloses any illegality. III. RE: SHOW-CAUSE NOTICE, PERSONAL HEARING AND THE PLEA OF EX-PARTE PROCEEDINGS 17) A perusal of the record shows that the appellant was served with a formal charge-sheet along with the summary of allegations, list of wit- nesses and list of documents, and was thereafter many opportunities were given including dated 10.10.1995, 17.10.1995, 19.10.1995, 10.11.1995 and SONIKA 2026.07.28 17:00 I attest to the accuracy and authenticity of this document RSA No. 1876 of 2000 (O&M) -14- again after the formal charge-sheet (Ex. D5) dated 30.11.1995 was sent to him on 16.12.1995, followed by 23.12.1995 and 05.01.1996, to appear be- fore the Enquiry Officer and meet the charge. He appeared on 03.11.1995, when he was directed to resume duty and did not comply; on every other occasion he stayed away, on the last few occasions citing his wife's illness without ever producing any supporting material despite having been given the opportunity to do so. It was only thereafter, given his continued non-ap- pearance, that the Enquiry Officer sought and was granted permission to proceed ex parte. 17.1) On these facts, the plea that no opportunity of hearing was af- forded, or that a further, separate show-cause notice ought to have pre- ceded the final order, does not survive scrutiny. The Hon'ble Apex Court in Board of Directors, H.P.T.C. v. K.C. Rahi, 2008(11) SCC 502 held that non-compliance with natural justice must be shown to have caused actual prejudice, and that a delinquent who knowingly stays away from an enquiry cannot later invoke the principle he chose to forgo. The relevant extract is produced hereunder:- "7. The principles of natural justice cannot be put in a straight jacket for- mula. Its application depends upon the facts and circumstances of each case. To sustain a complaint of non-compliance of the principle of natural justice, one must establish that he has been prejudiced thereby for non- compliance of principle of natural justice. 8. In the instant case we have been taken through various documents and also from representation dated 19.10.1993 filed by the respondent himself it would clearly show that he knew that a departmental enquiry was initiated against him yet he chose not to participate in the enquiry proceedings at his own risk. In such event plea of principle of natural justice is deemed to have SONIKA 2026.07.28 17:00 I attest to the accuracy and authenticity of this document RSA No. 1876 of 2000 (O&M) -15- been waived and he is estopped from raising the question of non-compli- ance of principle of natural justice." Thus, having been served with the charge-sheet and every subsequent notice, and having deliberately absented himself from the en- quiry despite repeated opportunities, the appellant must be taken to have waived any claim to a further hearing and is estopped from now complaining of its absence, no prejudice having been shown or even pleaded. RELIEF 18) In view of the discussion made hereinabove, finding no illegality or perversity in the findings recorded by the First Appellate Court and there being no misreading or misinterpretation of the pleadings and evidence on record, this Court finds no reason to interfere with the well-reasoned judg- ment and decree passed by the learned Court below. Hence, this Regular Second Appeal, being devoid of merit, is hereby dismissed. 19) Pending miscellaneous application(s), if any, shall also stand disposed of. July 16, 2026 (HARKESH MANUJA) 'sonika’ JUDGE Whether Speaking/reasoned Yes Whether Reportable Yes SONIKA 2026.07.28 17:00 I attest to the accuracy and authenticity of this document