Kilkenny, Halpern and Lane. The opinion of the court was delivered by Lane, J.A.D.
Plaintiff appeals from a decision of the Civil Service Commission upholding and affirming the action of the City of Newark in removing him from the Police Department.
Plaintiff received a regular appointment as a patrolman of the City of Newark from a Civil Service list on June 6, 1964. On October 22, 1968 charges were preferred against him for violations of Rule 7:4.7, Rule 6:14 and Rule 6:2 of the Newark Police Department Rules and Regulations. The basis of the first charge was that when plaintiff had been ordered by the police surgeon to report from sick leave on August 22, 1968, he failed to inform his superior officer that he had been returned to duty. The basis of the second charge was that plaintiff had received a lawful order from the police surgeon to report to duty from sick leave and failed to comply with that order. The third charge alleged that plaintiff had absented himself from work without any
superior officer giving him permission to do so. At a departmental hearing on January 3, 1969, he was found guilty of all the charges and suspended for 30 days. In addition, he was assessed an additional 30-day suspension as a result of alleged insubordinate conduct towards the Police Director at the time of the departmental hearing.
On January 27, 1969, Lt. William E. Weber gave plaintiff, who was still on suspension, an order to report to the First Precinct station so that he could be served with final notice of disciplinary action concerning the three charges referred to above. Earlier, on January 24, he had first been ordered to the station by Weber. When plaintiff advised Weber on the telephone on January 27 that he was not going to come into the precinct, Captain Charles M. Zizza came on the telephone and gave him a direct order on the telephone to report to the precinct at 3 P.M. or charges would be instituted against him. Captain Zizza testified:
When Rivell heard this he said to me "You order me?" And there was some laughter and again, in quotes "I'm not taking orders from you. You did enough to me already."
At the time of the conversation, plaintiff was officially assigned to Captain Zizza's command, and it was Captain Zizza's function to serve him with the final notice of disciplinary action. Lt. Weber's telephone conversation with plaintiff was made at the direct request of Captain Zizza.
As a result of plaintiff's failure to report to the precinct as ordered, charges were preferred against him as follows:
CHARGE I: Violation of Rule 3:2.5, Chapter 3, Rules and
Regulations -- Lawful Orders. "Police officers . . .
shall always respond to the lawful orders of su-
perior officers . . ." (TWO COUNTS)
1. Patrolman Louis J. Rivell, First Precinct,
while on departmental suspension January 24, 1969,
at or about 1:15 p.m., having received a lawful or-
der, via telephone, from Lieutenant William Weber,
a superior officer, to report to the First Precinct
station on January 27, 1969, did, without just
cause, fail and neglect to comply with such order.
2. Patrolman Louis J. Rivell, First Precinct,
while on departmental suspension January 27, 1969,
at or about 12:30 p.m., having received a lawful
order, via telephone, from Captain Charles M.
Zizza, a superior officer to report to the First
Precinct station by 3:00 p.m. on said date, did,
without just cause, fail and neglect to comply with
CHARGE II: Violation of Rule 6:8, Chapter ...