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Himachal Pradesh High Court · body

2014 DIGILAW 1233 (HP)

Kundan Lal Sharma v. State of H. P.

2014-09-10

TARLOK SINGH CHAUHAN

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JUDGMENT : - Tarlok Singh Chauhan, J. By means of this petition, the petitioner has claimed the following substantive reliefs:- “(A) This Hon’ble Court may kindly be pleased to issue a Writ of Certiorari quashing Enquiry Report Annexure P1 dated 10.9.2009, Order dated 26.9.2009 Annexure P2, Order dated 8.3.2010 Annexure P4 and Order dated 3.8.2010 Annexure P6 and Order dated 4.11.2011 Annexure P8. (B) That this Hon’ble Court may kindly be pleased to issue a Writ of Mandamus directing Respondents to promote the Petitioner to the post of Sub Inspector from the date he was due for the said promotion by invoking the provision of relaxation if so required provided under Rule 13.21 of the Punjab Police Rules without insisting upon the petitioner to undergo necessary training in this regard, with all consequential benefits even in case the petitioner superannuates during the pendency of the petition.” 2. The petitioner was appointed as a Constable in the Police Department in April, 1980 and thereafter was promoted as Head constable and then in the year 2003 promoted as Assistant Sub Inspector. The petitioner claims that in the year 2009, he was due for promotion to the post of Sub Inspector, but vide order dated 26.09.2009 issued by the Superintendent of Police, Bilaspur, the petitioner was imposed punishment of forfeiture of three years approved service permanently against which the petitioner preferred an appeal before the respondent No.3, who rejected the same vide order dated 08.03.2010. The petitioner thereafter filed a mercy appeal/revision before the respondent No.2 which also came to be dismissed vide order dated 03.08.2010. The petitioner then preferred CWP No.8672/2011 before this Court which came up for consideration on 30.09.2011 and the respondent No.2 was directed to consider the case of the petitioner in light of the orders passed in CWP No.985/2011. On 04.11.2011, the respondent No.2 again rejected the appeal of the petitioner by relying upon the instructions dated 24.02.2011 wherein it was provided that the promotion could not be ordered during the currency of the punishment. 3. The main ground of challenge by the petitioner is that in the guise of infliction of punishment of forfeiture of three years regular service permanently, the respondents have denied the petitioner promotion to the post of Sub Inspector without appreciating that forfeiture of three years regular service permanently did not render him ineligible for promotion to the post of Sub Inspector. 4. 4. The respondents have filed their reply and claimed that the petitioner could not have been promoted during the currency of the punishment and placed reliance upon the instructions dated 26.09.2009 wherein it has been provided that an incumbent is not entitled to promotion on the expiry of currency of punishment. In the present case since the petitioner was awarded punishment of forfeiture of three years approved service permanently with effect from 26.09.2009 and the currency of punishment would only be over in September, 2012, therefore, his case prior to the said date cannot be considered. 5. I have heard the learned counsel for the parties and gone through the records of the case carefully. 6. Shri Ajay Mohan Goel, learned counsel for the petitioner has forcefully argued that the punishment of forfeiture of approved service is neither contemplated in the Police Act, 1861, nor in the Punjab Police Rules, 1934 (as applicable to Himachal Pradesh). He further contends that even if there is a provision contemplating such punishment even then this amounts to double jeopardy as not only three years approved service of the petitioner has been forfeited, but thereafter he has even been denied his promotion during the currency of the punishment. 7. I proceed to examine first contention made by the learned counsel for the petitioner. Similar, question came up for consideration before this Court in Shri Bhagat Ram versus Inspector General of Police, Himachal Pradesh and others 1979 (3) SLR 256 wherein this Court held that Section 7 of the Police Act does not debar the rule marking authority to prescribe the form of punishment including forfeiture of approved service and the same was not violative of Section 7 of the Police Act or any other statute. Reference in this regard can be made to the following observations of this Court:- “16. So far as the first criterion is concerned, we are of the opinion that Section 7 of the Act does not contain any exhaustive list of the punishments which could be awarded under the Act. It is undoubtedly true that some punishments would have been enumerated in both parts of Section 7. But there is nothing to suggest that this enumeration is fully exhaustive in nature. The types of punishments which are contemplated by Section 7 in both of its parts are merely enumerative. It is undoubtedly true that some punishments would have been enumerated in both parts of Section 7. But there is nothing to suggest that this enumeration is fully exhaustive in nature. The types of punishments which are contemplated by Section 7 in both of its parts are merely enumerative. The section also does not say anything to the effect that no punishment other than that which is specified in the section could be awarded to a delinquent officer. In our opinion, therefore, it is clear that Section 7 does not debar the rule making authority to prescribe the form of punishment which is not enumerated therein. That being the position, it is not possible to say that the punishment of stoppage of increment or forfeiture of approved service is in any manner contrary to the provisions of section 7. 17. On the contrary, we find that such type of punishment would be covered by the punishment of "reduction" of the delinquent officer as contemplated by the first part of Section 7. It may be recalled that this first part of Section 7 contemplates three types of punishments. The words used in the first part are dismiss, suspend or reduce any police officer of the subordinate rank". The point to be noted is that reduction which is contemplated in the above clause is not merely the "reduction in rank". The use of the word "reduce" is comprehensive enough to suggest reduction in rank as well as other type of reduction. Now, when punishment of stoppage of increment or forfeiture of approved service is inflicted, it results not in the reduction of any rank, but it does result in reduction of the period of service and would, therefore, be covered by the comprehensive sense in which the word "reduce" is used in the first part of Section 7. That being the position, it was open to the State Government to frame a rule providing for the punishment of forfeiture of approved service which is nothing but one aspect of reduction contemplated by Section 7. We find support to this particular view from the decision given by a Division Bench of the Rajasthan High Court in Longmal vs. Superintendent of Police, reported in A.I.R. 1967 Raj. We find support to this particular view from the decision given by a Division Bench of the Rajasthan High Court in Longmal vs. Superintendent of Police, reported in A.I.R. 1967 Raj. 214 where in considering exactly the same point, the court has observed as under:- “It is correct that withholding of, increments is not a punishment provided as such in section 7 of the Police Act. The argument of the learned Government Advocate however, is that the word "reduce" in section 7 is comprehensive enough to include the punishment of withholding of increments. The language employed in Section 7 is "not reduction of rank" as employed in Article 311 of the Constitution but the only word used is 'reduce'. The grammatical meaning of the word 'reduce' inter alia is to lesson in any way as in size, weight, amount, value, price etc., to diminish, to lower as in rank or position, to decreased. (See Webstor's New 20th Century Dictionary). When the increments of an incumbent are stopped his future progress is brought to a stand-still for a particular length of time. It is the stoppage of his increase which results in a sense in a decrease of his emoluments. In our opinion, therefore, the word 'reduce' is wide enough to include the punishment of stoppage of increments. Stoppage of increments with future effect is a permanent reduction in the speed of progress so far as emoluments of an employee are concerned." “19. We have perused the above referred decision of the Punjab and Haryana High Court. It is not possible to know from the recorded judgment what were the actual words of Section 7 of the Pepsu Police Act which was considered in that case. However, presuming that Section 7 of the Pepsu Police Act was in the same words as Section 7 of the Police Act, we are of the opinion that this decision cannot be accepted as laying down the correct position of law in view of the fact that the High Court's attention in that case was not drawn to the comprehensive meaning of the word "reduce" found in the first part of Section 7 of the Police Act. At any rate, this decision of the Punjab and Haryana High Court is not of much help to the petitioner in this case in view of the fact that there the High Court was concerned only with the provisions of Section 7 of the Pepsu Police Act without the aid of any rule providing for the penalty of forfeiture in question. It was in absence of such a rule that the High Court came to the conclusion that there was no statutory provision in the Pepsu Police Act for inflicting the specific punishment of forfeiture of approved service. So far as the case before us is concerned, we have got a specific rule namely rule 16(1) which is referred to above, providing specifically for the punishment of forfeiture of approved service, and unless this rule is shown to be contrary to section 7, it cannot be struck down as ultra vires the statute. As we have already observed, this rule is not only not contrary to section 7, but is covered by the phraseology of the section itself, and therefore, it cannot be struck down as going against the provisions of section 7.” “21. It follows from the provisions contained in sections 3 and 4 as referred to above that it is the duty of the State Government to supervise the police district. The object of Police Act is to reorganise the police with, a view to make it more efficient instrument for prevention and detection of crime (vide the Preamble). Therefore, when clauses (a) and (c) of section 46 (2) speak about the regulation of procedure of the police officers in discharge of their duty and also about giving effect to the provisions of the Act, they clearly vest very wide power in the State Government to frame rules for the purpose of making the police force a more efficient instrument for the prevention and detection of crime. The provisions of the Act cannot be carried out properly unless suitable and detailed rules are made with a view to see that proper and appropriate punishment is awarded in a particular case consistent with the efficiency of the police force and the idea of prevention and detection of crime When, therefore, the State Government framed rule 16.1 and provided the lesser punishment of stoppage of increment or forfeiture of approved service, it was completely within its powers under section 46 to frame such a rule. To sum up, therefore, we are of the opinion that it is not possible to contend successfully that rule 16.1 which contemplates the punishment of stoppage of increment or forfeiture of approved service is in any manner ultra vires the statute.” In view of the aforesaid exposition of law, the first contention raised by the petitioner holds no water and is, therefore, rejected. 8. This takes me to the second contention raised by the learned counsel for the petitioner that the action of the respondents, firstly, imposing punishment of forfeiture of approved service permanently and thereafter not promoting him to the post of Sub Inspector during the currency of the punishment amounts to double jeopardy. 9. Indisputably, the respondents have issued instructions on 12.01.1995, regarding major punishment(s)/ adoption of uniform policy by the Departmental Promotion Committee(s) for Intermediate School Course and Upper School Course-Instruction thereof, the relevant portion whereof reads as under:- “The Departmental Promotion Committee(s) should not recommend those incumbents who are under the currency of punishment. In case of any major punishment including that of forfeiture of past service, the incumbents should not be selected for 3 years from the date of punishment or during the period of currency of punishment whichever is longer.” 10. Thereafter, it appears that certain difficulties were being faced in the implementation of the aforesaid instructions which on 04.07.2000 necessitated the issuance of the following clarifications:- “It has been observed that difficulties are being faced in the implementation of these instructions as in some cases departmental proceedings remain pending against the delinquents for a long periods and thereafter sometimes a major penalty may also be imposed. The matter has been re-examined and it is suggested that the punishing authority while passing the punishment order in such cases will make it clear as to from which date the punishment will take its effect keeping in view the circumstances of each case and reasons for delay in finalizing the departmental enquiry.” 11. The Hon’ble Supreme Court in Union of India and others versus K.V.Jankiraman and others (1991) 4 SCC 109 has clearly held that an employee, who is guilty and penalized is not entitled to be promoted at least till the date on which he is penalized and he cannot be said to have been subjected to further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct because while considering an employee for promotion his whole service records is to be taken into consideration and if a Promotion Committee takes the penalties imposed upon the employee into consideration and denies him promotion, such denial is not illegal and unjustified. Reference in this regard can conveniently be made to the following observations of the Hon’ble Supreme Court:- “29.According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal.” 12. Thus, what has been held by the Hon’ble Supreme Court, it can be taken to be more than settled that when promotion is under consideration, the previous records forms the basis and when the promotion is on merit and ability, the currency of punishment based on previous records stands as an impediment. Thus, what has been held by the Hon’ble Supreme Court, it can be taken to be more than settled that when promotion is under consideration, the previous records forms the basis and when the promotion is on merit and ability, the currency of punishment based on previous records stands as an impediment. Unless the period of punishment gets expired by efflux of time, the claim for consideration during the said period cannot be taken or else it would amount to retrospective promotion which is impermissible under the rules and would infact be granting premium on the misconduct of the incumbent. The doctrine of double jeopardy is also not applicable and non-consideration of promotion in such eventuality is neither violative of Articles 14, 16 or 21 of the Constitution as held by the Hon’ble Supreme Court. 13. At this stage, it may be relevant to take note of the judgment of the Hon’ble Supreme Court in State of T.N. versus Thiru K.S. Murugesan and others (1995) 3 SCC 273 wherein the Hon’ble Supreme Court after placing reliance on Jankiraman’s case (supra) has held as follows:- “7. It would thus be clear that when promotion is under consideration, the previous record forms the basis and when the promotion is on merit and ability, the currency of punishment based on previous record stands as an impediment. Unless the period of punishment gets expired by efflux of time, the claim for consideration during the said period cannot be taken up. Otherwise, it would amount to retrospective promotion which is impermissible under the Rules and it would be a premium on misconduct. Under these circumstances, we are of the opinion that the doctrine of double jeopardy has no application and non-consideration is neither violative of Article 21 nor Article 14 read with Article 16 of the Constitution.” Therefore, even the second contention of the learned counsel for the petitioner is also without any merit. 14. The upshot of the aforesaid discussion is that there is no merit in the petition and the same is accordingly dismissed leaving the parties to bear their own costs. Pending applications, if any, are also disposed of.