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2020 DIGILAW 2053 (PNJ)

Dalbir Singh Teji v. State of Punjab

2020-11-27

GIRISH AGNIHOTRI

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Judgment Mr. Girish Agnihotri, J. (Oral):- The matter has been taken up for hearing through video conferencing due to outbreak of COVID-19. 2. Petitioner Dalbir Singh Teji has filed the petition inter alia with the prayer to quash the proceedings dated 16.10.2018 (Annexure P.16), whereby, respondent No.7 dehors the rules, disagreed with the inquiry report as well as the order dated 12.09.2018 (Annexure P.15). It is further prayed that respondent No.3 was the punishing authority of the petitioner and further prayer is to quash the order dated 17.12.2018 (Annexure P.18) passed by respondent No.4. 3. Learned counsel for the petitioner based on pleadings in the petition submits that the whole action of the respondent is in violation of the Punjab Civil Services (Punishment and Appeal) Rules, 1970. 4. In view of facts noticed here under, and the reasons noticed, this Court is inclined to accept the writ petition. 5. Learned counsel for the petitioner submits that he joined the services of the Jail Department as a non gazetted officer in the year 1987, he was promoted as Deputy Superintendent of Prison, Grade-II in the year 2004 and further as Grade-I in the year 2012. Vide memo dated 15.05.2017 (Annexure P.6), the petitioner was informed that it has been decided to initiate proceedings against him under Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970. Learned counsel submits that inter alia the charge against him was that as per information received from Sh. Kunwar Vijay Partap Singh, IPS, one Gurjant Singh father of convict Gurmeet Singh @ Kala Dhanaula had been arrested and Rs.50,000/- and one mobile phone was recovered from him, within the jurisdiction of Central Jail Hoshiarpur. Counsel for the petitioner submitted reply to the chargesheet on 23.05.2017 by denying all the charges. In support of stand of the petitioner, the ADGP Jails vide dated 20.06.2017, informed Additional Chief Secretary (Home) through his detailed report by dealing with each and every plea taken by the petitioner in his reply. On the first point, it was inter alia recommended that Jail Officers and Officials should be warrned to remain active in future. On the second point, it was recommended that the search of security zone seems to be done as per record register. On the third point, it was recommended that no mobile phone has been recovered from the convict. On the first point, it was inter alia recommended that Jail Officers and Officials should be warrned to remain active in future. On the second point, it was recommended that the search of security zone seems to be done as per record register. On the third point, it was recommended that no mobile phone has been recovered from the convict. On the fourth point, it was recommended that on the same date of alleged incident learned District and Sessions Judge, Hoshiarpur along with other Judicial Officers were inspecting the Jail premises and Jail Superintendent i.e. Petitioner was busy in getting the Jail inspection done along with the aforementioned Judicial Officers. The report concluded with further recommendations that the Officer may reinstated in service. The copy of the said report (Annexure P.10) is appended with the writ petition. Thereafter, regular inquiry was held. The petitioner participated in the inquiry proceedings and copy of the inquiry proceedings has been attached as Annexure P.12. The said inquiry report has been submitted by Mr. Surjit Singh Dhillon, IAS (Retired) dated 31.01.2018. In the inquiry report reference has been made to Rule 8 of the PCS (Punishment and Appeal), Rules 1970. The point wise conclusion has been given by the Inquiry Officers. (i) It has been inter alia recorded that the charge for demanding/receiving an amount of Rs. 50,000/- from Gurmeet Singh or his family members is not proved. (ii) It has been concluded that the allegation i.e. not to keep the aforesaid convict in the higer security zone or not to search him daily is proved. (iii) After the submissions of this report learned counsel for the petitioner submits that Rule 9 of the Rules 1970 would come into play. The same is extracted here under:- “9. Action on the inquiry report- (1)The Punishment Authority, if it is not itself the inquiring authority may, for reason to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and the inquiring authority shall thereupon proceed to hold the further inquiring according to the provision of Rule 8 as far as may be. (2) The punishing authrotiy shall, if it disagrees with the finding of the inquiring authority on any article of charge, record its reasons for each disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.” 6. (2) The punishing authrotiy shall, if it disagrees with the finding of the inquiring authority on any article of charge, record its reasons for each disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.” 6. Vide letter dated 05.03.2018, the petitioner was served with a copy of the inquiry report and it was stated that if you want to say something in your aspect then reply may be submitted within 15 days. The petitioner submitted his reply dated 27.03.2018, copy of which has been appended as (Annexure P.13). 7. Learned counsel then submits with emphasis that even thereafter on 14.06.2018 the then ADGP submitted a detailed report with his recommendations on the inquiry report. 1. It has been inter alia recommended that he would agree with the reply of the petitioner/officer. 2. It has been recommended that there must be negligence of this officer but had no mala fide intention. 3. It has been recommended that no mobile phone has been recovered from the convict. He further recommended that the convict of the opposite party, Gurmeet Singh were confined in this security zone due to which possible efforts have been made by Superintendent Jail to keep this convict separate from them at safe/protected place and done whatever he could have done. He concluded by saying that he gives consent to the reply of the officer/petitioner. 8. Learned counsel then relies on (Annexure P.15) which is an order dated 28.08.2018. It appears to be an order passed on noting sheet. This document (Annexure P.15) is signed by Additional Chief Secretary, Home dated 12.09.2018. It has been concluded as under:- “Keeping in view the defence/evidence and facts lead by the officer during the course of hearing and the recommendations made by the ADGP (Jails) and the position explained by Sh. Surinder Saini, Deputy Inspector General of Police, it is recommended to consign the charge sheet, issued to Sh. Dalbir Singh Teji, Superintendent, to the record room” 9. It is evident from above that the Additional Chief Secretary has passed the order on the noting file dated 12.09.2018. As per this inter alia, the chargesheet be consigned to records. Learned counsel refers to Annexure P.16 which is also an order dated 16.10.2018 passed by respondent No.7 the cooperative and Jail Minister on the noting file. It is evident from above that the Additional Chief Secretary has passed the order on the noting file dated 12.09.2018. As per this inter alia, the chargesheet be consigned to records. Learned counsel refers to Annexure P.16 which is also an order dated 16.10.2018 passed by respondent No.7 the cooperative and Jail Minister on the noting file. In para 5 of the said order, passed by respondent No.7, it has been recorded that if a comparison of the report of the inquiry and the allegation in FIR is made it would show otherwise. Therefore, it was concluded by respondent No.7 by observing that active inquiry has not been done by both the aforementioned officers. The relevant extract of the said order which needs to be noticed is extracted here under:- “Therefore, this contention is not admissible and seems that active inquiry has not been done by both the aforesaid officers. This circumstantial evidence is there in the serious cases of corruption e.g. as per the secret information, the STF has intercepted the Swift car on which, the passengers were coming to meet the aforesaid gangster convict as a result of which, cash amount of Rs. 50,000/-, seizure and mobile phone have been recovered and this incident become the basis for registration of the FIR.” xxx xxx xxx xxx “xxxxxxxxxxx On perusal of the office record, it seems that the report was also sent by the office of ADGP (Intelligence) that Gurmeet Singh @ Kala Dhanaula (Gangster) was having one Samsung Mobile Phone and 4G connections etc. in the Jail and with the help of it, he used to remain in contact with other gangsters and social media. The Intelligence had also shown this fact that Gangster Kala Dhanaula may try to abscond abroad with the help of his associates. So all the connections/links of this incident cannot be coincidental. According to Superintendent (Teji) that the report of Intelligence is wrong, FIR is also false, the report submitted by the Inquiry officer is also wrong and conspiracy has been hatched against him by the Police and various other officers, this contention is baseless and concocted one. The Superintendent (Teji) failed to prove in his whole defence that why all the aforesaid facts and circumstances and various officers were against him due to which unseen reasons. Resultantly, it cannot be exaggeration in saying that Sh. The Superintendent (Teji) failed to prove in his whole defence that why all the aforesaid facts and circumstances and various officers were against him due to which unseen reasons. Resultantly, it cannot be exaggeration in saying that Sh. D.S. Teji is not only guilty but has also involved in this whole episode either directly or indirectly. 13. The Inquiry Officer, Sh. SS Dhilon, IAS has already proved one charge/allegation out of two but in order to prove second charge/allegation, there is lapse of direct evidence, the Inquiry Officer has overlooked the first charge/allegation but he has not at all considered the circumstantial evidence due to which, the inquiry report is not only incomplete but beyond the facts and circumstances of the case. The Inquiry Officer should have knew that standard of proof in a criminal court, that the offence should not be deemed to be established unless it is proved beyond reasonable doubt, is not applicable to departmental enquiries. The reason why in a criminal trial, the offence has to be established beyond reasonable doubt is because the life, liberty and reputation of the acccused are at stake. In the case of a departmental inquiry, there should only be reasonable grounds for holding that the misconduct was committed. The evidence may not be sufficient for the purpose of success of a criminal case, but it is quite sufficient for the purpose of disciplinary action.” 10. Respondent No.7 then concluded inter alia that he would give non consent to the proposal of Additional Chief Secretary (Home) and declare that the reply submitted by the petitioner is not satisfactory and further proceeded to record that the petitioner is found guilty in all the charges and allegation levelled against him. On the basis thereof he further ordered to demote the petitioner from the post of Superintendent Grade-I to Superintendent Grade-II. 11. Thereafter, vide letter dated 15.11.2018, letter was sent to complete the procedure, to the Public Service Commission and thereafter punishment order dated 21.12.2018 was passed whereby petitioner was demoted to the post of Deputy Superintendent Grade-II vide order dated 21.12.2018. 12. In view of the aforementioned facts noticed above and for the reason noticed here under, this Court is inclined to accept the prayer made by the petitioner in the present writ petition. 13. This Court finds force in submissions of the learned counsel for the petitioner. 12. In view of the aforementioned facts noticed above and for the reason noticed here under, this Court is inclined to accept the prayer made by the petitioner in the present writ petition. 13. This Court finds force in submissions of the learned counsel for the petitioner. In view of Rule 9 of the 1970 Rules the Punishing authority is competent to take action on the Inquiry Report. The Punishing Authority by recording reasons, may remit the case to the inquiring authority for further inquiry. The inquiring authority shall thereupon proceed to hold further inquiry, as per Rule 8. The Punishing authority if it disagrees with the findings of the Inquiring authority on any article of charge, may record its reasons for each disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. 14. Learned counsel for the State further submits that the plea of the petitioner cannot be accepted as the reasons for disagreement only required to be recorded if the punishing authority disagrees with the inquiry report. She, therefore, submits that infact the punishing authority has agreed with the inquiry report. 15. This Court is inclined to accept the plea of the petitioner. It can be noticed from the order passed by respondent No.7 that at more than one occasion the respondent No.7 has recorded that active inquiry has not been done by both the aforementioned Officers. 16. At this stage, it is relevant to notice that a perusal of the inquiry report would show that regarding the main charge the Inquiry Officer had recorded that petitioner is not guilty whereas the respondent No.7 has recorded that active inquiry has not been done. 17. This Court is of the considered view that in such a situation the course open to the Punishing authority was to proceed under Rule 9(1) i.e. to remit the case to the inquiring authority for further inquiry. The Authorities, however, have neither given opportunity to the petitioner to represent against the Disagreement note (after recording one) nor have remitted the case to inquiring authority for further inquiry. Therefore, this Court hold that the impugned action and the inpugmed order has fallen to error and the same is ordered as quashed. 18. It is also important to record that the action of the respondents cannot be said to be in terms of Rule 9(2). Therefore, this Court hold that the impugned action and the inpugmed order has fallen to error and the same is ordered as quashed. 18. It is also important to record that the action of the respondents cannot be said to be in terms of Rule 9(2). The respondent No.7 inter alia recorded that Intelligence has also shown this fact that Gangster Kala Dhanaula may try to abscond abroad. By the said authority it is also observed that there is lapse of direct evidence. In view of above this Court is of the considered view that the authorities have neither given the petitioner opportunity to reply, by supplying Disagreement note (after recording one) nor any specific evidence available on enquiry file has been referred to, (which proves the main charge(s)). Therefore, this Court holds that the impugned action and the impugned order has fallen to error and the same is ordered as quashed. 19. This Court further notices that since respondent No.7 had proceeded with the assumption that the petitioner was guilty of both the charges, has imposed a punishment of demotion from the post of Superintendent Grade-I to Superintendent Grade-II. Although, the order passed by respondent No.7 and the order passed by the Punishing Authority dated 21.12.2018 uses the word demoted from post of Deputy Superintendent Grade-I to Deputy Superintendent Grade-II. Importantly, ‘Demotion’ is not one of the punishments prescribed under Rules, it apparently appears to be an order passed under Rule 5(6) imposing punishment of reduction to lower Grade and post. This Court is of the view that there has been violation of principles of natural justice as well as the statutory Rules of 1970 whereby the respondent No.7 as well as punishing authority have proceeded on the assumption that petitioner is guilty of both the charges whereas the Inquiry Officer had actually recommended that petitioner is not guilty qua the first charge. This Court also agrees with the contention of the petitioner that the first charge was actually regarding allegation of alleged corruption and once that was not proved, it takes the sting out of the main charge. 20. Learned counsel for the petitioner then submits that the whole action is violative of principles of natural justice. This Court also agrees with the contention of the petitioner that the first charge was actually regarding allegation of alleged corruption and once that was not proved, it takes the sting out of the main charge. 20. Learned counsel for the petitioner then submits that the whole action is violative of principles of natural justice. The petitioner was given personal hearing by the Additional Chief Secretary (Home) on 21.08.2018 as recorded in Annexure P.15 whereas the punishment order has been passed by another Officer who had not given personal hearing to the petitioner. Learned State counsel however submits that the punishment order has been passed by Punishing Authority and, therefore, even if personal hearing is not granted by him but granted by an Officer of equivalent or higher rank, the principles of natural justice cannot be said to be violated. 21. This Court is inclined to accept the plea taken by the counsel for the petitioner. Principles of natural justice could only be said to be complied with in case the hearing as well as the punishment order was passed by the same Officer. It is further appropriate to mention that the purpose of hearing in this case granted by a different Officer, looses the significance of personal hearing. 22. Learned counsel for the petitioner further submits that as mentioned in para 5 of the petition, Section 2(d) “Government” has been defined to mean the Punjab Government in the Administrative Department”. However, learned counsel for the State refers to Annexure R.I, to submit that as per the circular dated 27.11.2018 (Annexure R.I) it is the Minister incharge i.e. Jail Minister who is competent to take the decision. 23. Learned counsel for the petitioner, however, submits that the plea of the State cannot be accepted because the order passed by the respondent No.7 is on the noting file dated 16.10.2018 whereas, Annexure R.I, which is relied upon by the respondent is of latter dated 27.11.2018. He, therefore, submits that the order on the noting file passed by respondent No.7 is without jurisdiction. 24. This Court in order to resolve the controversary deems it appropriate to request the Chief Minister, Punjab to examine the said issue. He, therefore, submits that the order on the noting file passed by respondent No.7 is without jurisdiction. 24. This Court in order to resolve the controversary deems it appropriate to request the Chief Minister, Punjab to examine the said issue. The present case having been dealt with at the level of respondent No.7 and petitioner deciding to challenge the same by making respondent No7 as party, it would be in fitness of things to desire the Chief Minister, Punjab to examine this issue and pass the order on the recommendations of the ADGP, Punjab (Annexure P.14). 25. The above writ petition is accordingly disposed off with the following directions. (i)The impugned order of punishment dated 17.12.2018 is quashed the matter is remitted back to the stage of consideration by the competent authority on the inquiry report and reply submitted by the petitioner and recommendations of the ADGP dated 14.06.2018. (ii) In view of what has been recorded above, Chief Minister, Punjab is desired to examine the file and pass the appropriate orders in accordance with law. It is directed that in case the plea taken by the petitioner is not to be accepted and plea taken by the State counsel (that is in view of the circular dated 17.11.2018) is to be accepted, the competent authority is at liberty to take a decision in accordance with law from the stage as aforementioned. It is desired that needful be done preferably within a period of two months from today. (iii) It is further directed that in case the competent authority agrees with the recommendations of the ADGP (Annexure P.14) and decides to drop the charges, consequential orders and service benefits be restored to the petitioner within a period of one month thereof. Disposed off.