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PETITIONER: STATE OF PUNJAB & ORS.

       Vs.

RESPONDENT: DHARAM SINGH

DATE OF JUDGMENT:       16/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      This appeal  by special  leave arises from the order of the Punjab  & Haryana High Court, made on October 4, 1995 in Writ Petition No. 9718 of 1994. Action was take under Punjab Police Rules  for taking  disciplinary  action  against  the respondent for  his failure   to  report for  duty    during period from   November  21, 1991  to October  31,  1992.  An inquiry was  conducted against  the respondent  and  it  was conducted against  the respondent  and it was found that his absence was wilful. The High Court has set aside his removal from service  on the  ground that  subsistence allowance was not paid  to him and, therefore, his absence was not wilful. Rule 16.21 reads as under;      "16.21 -  Status and  treatment  of      officer under  suspension -  (1)  A      police officer  shall not by reason      being suspended  from office  cease      to be a police officer.           During  the   term   of   such      suspension  the  powers,  functions      and privileges  vested in  him as a      police   officer    shall   be   in      abeyance,  but  he  shall  continue      subject      to       the      same      responsiblities, discipline  and to      the same  authorities, as if he had      not been suspended."      A reading of it would clearly indicate that even during the period  of suspension  the police officer is required to attend to roll call and be available to the authorities. The payment of  subsistence allowance,  as  ordered,  under  the suspension rule  is one  facet of  it and  his  duty  to  be present is another. No-payment of subsistence allowance does not entitle  a delinquent officer to be absent from duty. It is his duty to claim subsistence allowances and if it is not paid, necessary  representation to  the  higher  authorities and, if  the grievance  is not redressed, to the appropriate forum seeking  payment, may  be made. But that does not mean

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that the  delinquent officer,  in the  face of  the  express rule,  can   absent   himself   from   duty.   Under   these circumstances, the  conclusion reached  by the  disciplinary authority that  he was  wilfully absent  from duty  is  well justified. However, on the quantum of punishment imposed, on the facts  and circumstances of the case, we are of the view that instead  of the  removal, compulsorily  retirement from service would be an appropriate punishment.      The appeal  is accordingly  allowed. The  order of  the High Court  stands  set  aside.  Instead  of  the  order  of removal, the authorities are directed to consider passing an order compulsorily retiring him from service so that he will be eligible  to the  pensionary benefits  and other benefits under the rules, No costs.