RAJINDER SINGH SON OF SH. D. R. CHAUHAN v. STATE OF H. P. THROUGH SECRETARY HOME TO THE GOVERNMENT OF HIMACHAL PRADESH SHIMLA, H. P.
2021-09-22
SATYEN VAIDYA, TARLOK SINGH CHAUHAN
body2021
DigiLaw.ai
ORDER : By way of instant petition, petitioner has prayed for the following substantive reliefs:- (i) That the order dated 22.05.2019 passed by respondent No.3 and order dated 17.10.2019 passed by respondent No.2 may kindly be quashed and set aside. (ii) That the respondents be directed to refund the recovery as made by the respondent and to grant all benefit due to the petitioner. 2. Petitioner has preferred the petition on the premise that he is working as Head constable with the Police Department of State of Himachal Pradesh. His initial appointment was as constable and he was promoted to the present post by virtue of his merit. As per petitioner, he has an excellent career which has been free from any complaints, allegations and insinuations. 3. Petitioner has alleged that he was framed in false charges, on the basis of which a departmental inquiry was conducted against him. The inquiry was dropped by the Commandant 1st HPAP Battalion, Junga, District Shimla, H.P., vide order dated 16.07.2018. As per petitioner, he made a representation to the Director General of Police, Police Headquarters, Himachal Pradesh, Shimla, through proper channel, seeking promotion to the Higher rank, but instead the Inspector General of Police issued a notice dated 18.03.2019, to petitioner under Rule 16.28 of the Punjab Police Rules, 1934, requiring petitioner to show cause why enhanced punishment be not awarded to him. Despite having shown cause by the petitioner, Inspector General of Police vide order dated 22.05.2019, reviewed the order passed by the Commandant 1st HPAP Battalion, Junga, and imposed penalty of reduction in pay by upto 03 stages in the time scale for a period not exceeding 03 years. 4. Petitioner filed an appeal against the above noticed order passed by Inspector General of Police, Armed Police & Training, Himachal Pradesh. The appeal of petitioner was dismissed by the Director General of Police, Himachal Pradesh, vide order dated 17.10.2019. 5. Aggrieved against the order dated 22.05.2019, passed by Inspector General of Police and affirmed by Director General of Police vide order dated 17.10.2019, petitioner has approached this Court by way of instant petition. According to petitioner, the impugned orders are not in conformity with law in as much as the provisions of 16.28 of Punjab Police Rules were not applicable in the case.
According to petitioner, the impugned orders are not in conformity with law in as much as the provisions of 16.28 of Punjab Police Rules were not applicable in the case. It has specifically been stressed that Rules 16.28 provided power of review only where there is an award of punishment and order passed by the Commandant 1st HPAP Battalion, Junga, was in respect of closure of inquiry and thus it did not qualify to be an award. The impugned orders have also been alleged to be time barred, besides being perverse. It has been stated that there was no material on record to indict the petitioner. The impugned orders were motivated and were against the principle of nature justice. 6. Respondents have contested the claim of the petitioner. It is alleged that on 05.09.2017 to 7.09.2021 petitioner had absented himself from duty unauthorizedly. On 17.09.2017 at 5:40 p.m., he was found to be under influence of liquor while on duty, under such influence he made a telephone call to In-charge State C.I.D., Kangra, and misbehaved with him by using in-appropriate language. Petitioner was got medically examined and was found to have consumed alcohol. He again remained absent from his duties from 18.09.2017 to 19.09.2017. 7. Respondents have further submitted that a regular departmental inquiry was conducted against the petitioner under Rule 16.24 of Punjab Police Rules. The Inquiry Officer found the charges proved against petitioner. 8. The Commandant 1st HPAP Battalion, Junga, ordered the closure of inquiry against the petitioner by extending warning not to repeat such conduct in future. 9. The Inspector General of Police, Himachal Pradesh, in exercise the powers under Rule 16.28 of Punjab Police Rules and after affording due opportunity to petitioner reviewed the order passed by Commandant 1st HPAP Battalion, Junga. Penalty was imposed. An appeal was preferred by the petitioner against the order of Inspector General of Police, Himachal Pradesh, but the same was affirmed by Director General of Police, Himachal Pradesh. 10. We have heard learned counsel for the parties and also gone through the records. 11. It is not in dispute that charges framed against the petitioner were as under:- I. Absence from the duty from 5.09.2017 to 7.09.2017. II. Misbehaving with Dy.S.P. and I/C State CID Unit Kangra on the telephone as well as allegation of attending the office while under the influence of alcohol. III.
11. It is not in dispute that charges framed against the petitioner were as under:- I. Absence from the duty from 5.09.2017 to 7.09.2017. II. Misbehaving with Dy.S.P. and I/C State CID Unit Kangra on the telephone as well as allegation of attending the office while under the influence of alcohol. III. Habitual of making himself absent from duty. 12. It is also not in dispute that on such charges departmental inquiry was held against petitioner and charges were found to have been proved. 13. Perusal of the order dated 17.07.2018, passed by Commandant 1st Battalion, Junga, reveals that though said officer had not set aside the findings of Inquiry officer, yet the inquiry was ordered to be closed against petitioner. The relevant extract of order dated 17.07.2018 passed by the Commandant Ist Battalion, Junga, is as under: “…I have gone through the record of enquiry report of the official. Though the act and conduct of the official (delinquent) in the instant case remained shoddy. However, the present allegation of bad act and conduct were substantiated by the E.O. by collecting the evidence. The nature of the act alleged against him is not of grievous nature but the same is of petty misconduct. Though, Policeman should not retract from good behaviour and politeness but at times under duress circumstances he might have exceeded the limits. He warned & in future he should not repeat the same conduct and the D.E. is hereby ordered to be closed with immediate effect. The suspension period of HC Rajinder Singh No.100 w.e.f. 15.11.2017 to 30.11.2017 is hereby ordered to be treated as period spent on duty. (Order be published in Order Book)...” 14. It is evident from the record that petitioner has not assailed either the findings recorded by the Inquiry officer or the order passed by Commandant 1st Battalion, Junga. 15. That being so, the charges framed against the petitioner stood proved and had attained finality. Confronted with the situation, learned counsel for petitioner tried to evolve an argument that since the order passed by Commandant 1st Battalion, Junga, was not against him, he could not have assailed the same. This, in our considered view, is not the correct proposition. A person aggrieved against the findings only even though had not been punished, still has a right to challenge the findings.
This, in our considered view, is not the correct proposition. A person aggrieved against the findings only even though had not been punished, still has a right to challenge the findings. Petitioner having failed to do so cannot subsequently assail the findings so recorded. 16. As regards jurisdiction of Inspector General of Police, Himachal Pradesh to exercise the power under Rule 16.28 of Punjab Police Rules, we do not find any illegality or perversity in such exercise of the power provided under Rule 16.28 of the Punjab Police Rules read as under:- 16.28 Powers to review proceedings. –(1) The inspector General, a Deputy Inspector-General, and a Superintendent of Police may call for the records of awards made by their Subordinates and confirm, enhance, modify or annul the same, or make further investigation or direct such to be made before passing orders. [The State Government may also call for the records and review the awards made by the Inspector General of Police Punjab or by any other authority subordinate to him.] 2. If an award of dismissal is annulled, the officer annulling it shall state whether it is to be regarded as suspension followed by reinstatement, or not. The order should also state whether service previous to dismissal should count for pension or not. 3. In all cases in which officers purpose to enhance an award they shall, before passing final orders, give the defaulter concerned an opportunity of showing cause, either personally or in writing, why his punishment should not be enhanced. 17. The above noted rule empowers the Inspector-General, Deputy Inspector-General and Superintendent of Police to call for records of awards made by their subordinates and to confirm, enhance, modify or annul the same. The only requirement is that the defaulter concerned is to be afforded an opportunity of showing cause in case the punishment was to be enhanced. 18. As per contention of petitioner, the term award used in Rule 16.28 of the Punjab Police Rules, connotes the order inflicting some punishment. It has been argued on behalf of petitioner that since no punishment was imposed upon him by Commandant Ist Battalion, Junga, the exercise of power under Rule 16.28 was not available. 19. The term award has not been defined in Punjab Police Rules. In legal parlance, it can be inferred that award will not only mean a decision whereby a person has been punished.
19. The term award has not been defined in Punjab Police Rules. In legal parlance, it can be inferred that award will not only mean a decision whereby a person has been punished. Award is the expression of adjudication on an issue irrespective of the final outcome thereof. In the context of disciplinary proceedings and especially, the proceedings under Punjab Police rules, as applicable in the State of Himachal Pradesh, such a narrow interpretation will not only be absurd but will make the provision of Rule 16 of the Police Rules nugatory. By application of such interpretation an illegal, perverse or for that matter an order without jurisdiction whereby a delinquent is exonerated will become final and higher authorities will remain as silent spectators. 20. In a disciplinary force like the police, the rules of discipline and conduct are always stringent and are required to be applied stringently. The charges having stood proved against petitioner, the order of Commandant 1st Battalion, Junga, was nothing but perverse. The subjective approach adopted by said officer while dealing with the case of the petitioner suggested much more than what is visible to the naked eyes. 21. The order of Commandant Ist Battalion, Junga, was without any reasoning. Once the Inquiry officer had found the charges proved against petitioner, the Commandant Ist Battalion, Junga, could not lawfully order the closure of inquiry without setting aside the findings of Inquiry Officer. 22. We are of the considered view that the Inspector General of Police has not committed any illegality in exercising the powers under Rule 16.28 of the Punjab Police Rules. Nothing has been placed on record by petitioner to substantiate his allegation of the impugned order being motivated. As regards the challenge to the impugned order being time barred also appears to be fallacious. 23. In light of above discussion, we find no merit in the petition and the same is dismissed with no orders as to costs. Pending miscellaneous applications, if any, are also disposed of accordingly.