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2013 DIGILAW 824 (PNJ)

Krishan v. State of Haryana

2013-07-04

TEJINDER SINGH DHINDSA

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JUDGMENT Mr. Tejinder Singh Dhindsa, J.: - The petitioner who was serving as a Constable under the Haryana Police was dismissed from service vide order dated 28.05.2010 passed by the Superintendent of Police, Karnal (Annexure P-4). His statutory appeal was partly accepted by the Inspector General of Police, Rohtak Range, Rohtak vide order dated 22.09.2010 (Annexure P-6), whereby he was directed to be reinstated back in service and the punishment was reduced to stoppage of two future annual increments with permanent effect. The Director General of Police, Haryana while invoking the powers under Rule 16.28 (1) of the Punjab Police Rules, 1934 passed order dated 29.07.2011 (Annexure P-10), whereby the penalty of stoppage of two annual increments with permanent effect awarded by the Inspector General of Police, Rohtak was enhanced to dismissal from service. The instant writ petition has been filed impugning the aforenoticed three orders at Annexures P-4, P-6 and P-10. 2. Brief facts of the case are that the petitioner was enrolled as a Constable on 23.11.2003. A departmental inquiry was initiated against the petitioner and another official namely HC Jagtar Singh on the allegations that while they were posted in Police Station Nissing they had received illegal gratification from Baljit Singh S/o Sh. Hoshiar Singh and Bijinder Singh S/o Sh. Mahabir Singh, who were transporting animals from Haryana to U.P. The Inquiry Officer i.e. District Inspector, Karnal furnished inquiry report dated 30.04.2010 (Annexure P-1) holding the petitioner to be guilty of the charge. The Punishing Authority upon agreeing with the findings of the Inquiry Officer issued a show cause notice dated 12.05.2010 (Annexure P-2), whereby penalty of dismissal from service was contemplated. It is pleaded that the petitioner submitted a reply dated 18.05.2010 and the Punishment Authority passed impugned order dated 28.05.2010 (Annexure P-4) dismissing the petitioner from service. The petitioner preferred a statutory appeal and the Appellate Authority reduced the penalty from dismissal to stoppage of two increments with cumulative effect vide order dated 22.09.2010 (Annexure P-6). The petitioner thereafter filed a revision petition (Annexure P-7) before the Director General of Police. The petitioner preferred a statutory appeal and the Appellate Authority reduced the penalty from dismissal to stoppage of two increments with cumulative effect vide order dated 22.09.2010 (Annexure P-6). The petitioner thereafter filed a revision petition (Annexure P-7) before the Director General of Police. It has been specifically averred that instead of considering the revision petition filed by the petitioner, the Director General of Police, Haryana invoked the powers under Rule 16.28 (1) of the Punjab Police Rules, 1934 (as applicable to the State of Haryana) and issued show cause notice dated 06.06.2011 (Annexure P-8) as regards enhancement of punishment to that of dismissal from government service. Placed on record is a detailed reply dated 23.06.2011 (Annexure P-9) submitted by the petitioner to the show cause notice dated 06.06.2011. Vide order dated 29.07.2011 (Annexure P-10), the Director General of Police, Haryana had enhanced the punishment of stoppage of two annual increments with permanent effect to that of dismissal from service. It is against such factual backdrop that the present writ petition has been filed. 3. Learned senior counsel appearing for the petitioner has vehemently argued that the Inquiry Officer instead of appreciating the evidence led during the course of inquiry proceedings has held the petitioner guilty on the basis of a preliminary inquiry report, which was submitted at the back of the petitioner. It has been argued that such course of action was not permissible in the eyes of law. In support of such contention reliance has been placed upon a judgment of the Hon’ble Supreme Court in Narayan Dattatraya Ramteerthakar Vs. State of Maharashtra & others, 1997 AIR Supreme Court 2148 as also Gujarat High Court Bhagwanbbai M. Patel Vs. General Manager (Operation) Resume, State Bank of India, Gujarat. 2008 (1) SLR 570. It has also been argued that the petitioner while posted at Police Station Nissing had been assigned the duties of a Computer Operator and as such, there was no occasion for him to have demanded any money from PW-3 Baljit Singh and PW-4 Bijinder Singh during the course of patrolling duty. It has been argued that the testimony of DW-1 Inpector Shamsher Singh in this regard had been totally ignored by the Inquiry Officer. It has been argued that the testimony of DW-1 Inpector Shamsher Singh in this regard had been totally ignored by the Inquiry Officer. While assailing the order dated 28.05.2010 (Annexure P-6) passed by the Punishing Authority i.e. Superintendent of Police, Karnal, it has been contended that the reply submitted by the petitioner to the show cause notice has not been considered at all. Challenge to the order passed by the Appellate Authority dated 22.09.2010 (Annexure P-6) has been raised on the ground that the issue as to whether any misconduct had been committed by the petitioner or not, was not even gone into and as such, the order of the Punishing Authority deserved to be set aside in toto. Still further, it has been argued that respondent No. 2 i.e. the Director General of Police, Haryana while invoking the provisions of Rule 16.28 1)and having issued the show cause notice in this regard, ought to have considered the detailed reply dated 23.06.2011 (Annexure P-9) submitted by the petitioner and which has not been done. 4. Per contra, the impugned orders are sought to be justified by the learned counsel appearing for the State by stating that the complete procedure envisaged under the rules had been followed. A preliminary inquiry had been followed by a regular departmental inquiry and it is only upon culmination of such departmental proceedings that the impugned order of dismissal from service had been passed. It has further been submitted that under Rule 16.28 ((1), a superior officer has the power to review proceedings and to call for the records in relation to an order of punishment passed by a subordinate authority and it was open to confirm, enhance or modify such order of punishment. Accordingly, it has been submitted that the petitioner has been held guilty of accepting illegal gratification and in relation to which the imposition of extreme penalty of dismissal from service was justified. 5. Having heard counsel for the parties at length, I am of the considered view that the legality of the orders dated 28.05.2010 (Annexure P-4) passed by the Superintendent of Police, Karnal and order dated 22.09.2010 (Annexure P-6) passed by the Inspector General of Police, Rohtak Range, Rohtak would not require any examination at this stage. 5. Having heard counsel for the parties at length, I am of the considered view that the legality of the orders dated 28.05.2010 (Annexure P-4) passed by the Superintendent of Police, Karnal and order dated 22.09.2010 (Annexure P-6) passed by the Inspector General of Police, Rohtak Range, Rohtak would not require any examination at this stage. Such view is being taken for the reason that the facts of the present case would make out a case for remand to respondent No. 2 i.e the Director General of Police, Haryana for reconsideration. 6. Undoubtedly, Rule 16.28 empowers the Competent Authority to enhance a penalty after having given the defaulter an opportunity of showing cause either personally or in writing before passing a final order. The rule embodies an elementary principle of fairness. Such opportunity cannot be reduced to a mere eye wash and formality. Admittedly, in the facts of the present case, the petitioner was served with a show cause notice dated 06.06.2011 (Annexure P-8) by respondent No. 2 while invoking the powers under Rule 16.28. The petitioner submitted a detailed reply thereto dated 23.06.2011 (Annexure P-9) raising all the pleas that have been taken even in the present writ petition. The final impugned order dated 29.07.2011 (Annexure P-10) does not even advert to the submissions/grounds raised in the reply much less deal with the same. It was obligatory upon respondent No. 2 to have passed a cogent and reasoned order. On the contrary, the impugned order dated 29.07.2011 (Annexure P-10) is a cryptic and non-speaking order. That apart, there is no rebuttal to the fact that the revision petition at Annexure P-7 that the petitioner had filed against the order dated 22.09.2010 (Annexure P-6) passed by the Appellate Authority has also not been dealt with and no specific order in relation thereto has been. 7. For the reasons recorded above, the present writ petition is partly allowed and the order dated 29.07.2011 (Annexure P-10) is set aside. 7. For the reasons recorded above, the present writ petition is partly allowed and the order dated 29.07.2011 (Annexure P-10) is set aside. The matter is remanded back to the Director General of Police to pass an order afresh after taking into account the submissions/grounds raised in the reply dated 23.06.2011 (Annexure P-9) submitted by the petitioner in response to the show cause notice dated 06.06.2011 as also to the revision petition preferred at Annexure P-6 and such final order be passed within a period of three months from the date of receipt of a certified copy of this order. 8. It is, however, clarified that the reinstatement of the petitioner would be kept in abeyance and would be subject to the final order i.e. to be passed by the Director General of Police. The civil writ petition is disposed of in the aforesaid terms. ------------------