ORDER : Petitioner namely, Sh. Sucha Singh joined the services of the respondent Police Department as Constable in the year, 1986. Subsequently, he came to be promoted as Head Constable and thereafter ASI. While petitioner was posted as SHO, police Station, Rajgarh, FIR bearing No.102/2013, dated 2.12.2013 came to be registered against him at the behest of person namely, Sh. Het Ram, who alleged that the petitioner was hand in glove with the accused party and for cancellation of FIR, accused party offered him an I-20 car. He also alleged that petitioner demanded sum of Rs.50,000/- from the complainant. Taking cognizance of aforesaid complaint and registration of FIR, Disciplinary authority initiated disciplinary proceedings. Inquiry officer appointed by the authority, issued summary of allegations against the petitioner and started disciplinary proceedings. Inquiry officer submitted inquiry report to the competent authority on 21.5.2015 (Annexure A-2), stating therein that all the charges framed against the petitioner stands proved. Petitioner filed detailed objections to the inquiry report (Annexure A-3), however, show cause notice was issued to the petitioner on 21.2.2015, proposing penalty of forfeiture of five years approved service with permanent effect. Though, petitioner filed detailed reply to the same, but the competent authority rejected the same and imposed penalty of forfeiture of five years approved service with permanent effect (Annexures A-4 & A-5). Against aforesaid order of punishment, petitioner filed an appeal before the competent authority (Annexure A-6), but same was also rejected by the competent authority. Being aggrieved with the rejection of appeal, petitioner filed revision petition before the competent authority, however same was also rejected vide order dated 23.03.2016 (Annexure A-7). In the aforesaid background, petitioner approached erstwhile H.P. State Administrative Tribunal by way of Original Application 6039 of 2016, which now on account of abolishment of erstwhile H.P. Administrative Tribunal, came to be transferred to this Court and stands re-registered as CWPOA No.634 of 2020, praying therein for following reliefs:- “1. That charge sheet dated 6.1.2015 (Annexure A-1), enquiry report (Annexure A-2), show cause notice dated 21.2.2015 (Annexure A-4), penalty order dated 22.7.2005 (Annexure P-5) and order rejecting the appeal dated 23.3.2016 (Annexure A-7) may very kindly be quashed and set aside and respondents may be directed to re-fix the pay of the applicant and arrears may be paid alongwith interest at the rate of 24% per annum without any further delay. 2. 2. That the respondents may be directed to consider the case of the applicant for all consequential benefits from the date when the same were released in favour of juniors to the applicant with interest at the rate of 24% per annum. 2. Ms. Ranjana Parmar, learned Senior counsel representing the petitioner, vehemently argued that entire enquiry proceedings stands vitiated on account of non-compliance of Clause 16.38 of the Punjab Police Rules, 1934, which is applicable to the Himachal Pradesh Police. She submitted that as per aforesaid provisions of law, Disciplinary authority after lodging FIR, if any, against delinquent officer, where a preliminary enquiry or investigation into a complaint alleging the commission by an enrolled police officer is received or same establishes a prima facie case, a judicial prosecution shall be initiated but where competent authority proposes to proceed in the case departmentally, the concurrence of District Magistrate is necessary. Learned Senior Counsel while making this court to peruse the record submitted that no concurrence, if any, ever came to be taken from the District Magistrate before initiation of disciplinary proceedings against the petitioner and as such, disciplinary proceedings initiated against the petitioner stands vitiated. 3. Mr. Sudhir Bhatnagar, learned Additional Advocate General while fairly admitting that in terms of Clause 16.38 of the Punjab Police Rules, prior concurrence of District Magistrate is necessary before imitating disciplinary proceedings, contended that ex post facto approval was taken by the Disciplinary authority and as such, it cannot be said that aforesaid rules has been not complied with. 4. I have heard learned counsel for the parties and gone through the record of the case. 5. Though, learned Senior counsel representing the petitioner as well as learned Additional Advocate General also raised rival contentions with regard to correctness of the disciplinary proceedings, but since specific objection has been raised with regard to non-compliance of Rule 16.38 of Punjab Police Rules, applicable to the State of H.P., this Court at first instance deems it necessary to deal with the same and in case submissions made by learned Senior counsel representing the petitioner do no find favour with this Court, this Court would proceed to decide the case on the basis of the factual matrix. 6. 6. It is not in dispute that Punjab Police Rules 1934, are applicable to the State of H.P. If rule 16.38 of Punjab Police Rules, which is reproduced hereinbelow, is read in its entirety, it compels this Court to agree with the contention of learned Senior Counsel representing the petitioner that prior concurrence of District Magistrate is necessary for initiation of disciplinary proceedings against the delinquent police officials. 16.38. Criminal offences by police officers and strictures by Courts - Procedure regarding. - (1) Immediate information shall be given to the District Magistrate of any complaint received by the Superintendent of Police, which indicates the commission by a police officer of a criminal offence in connection with his official relations with the public. The District Magistrate will decide whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected [Executive Magistrate]1 (2) When investigation of such a complaint establishes a prima facie case, a judicial prosecution shall normally follow; the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded. When it is decided to proceed departmentally the procedure prescribed in rule 16.24 shall be followed. An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed. (3) Ordinarily a Magistrate before whom a complaint against a police officer is laid proceeds at once to judicial enquiry. He is, however, required to report details of the case to the District Magistrate, who will forward a copy of this report to the Superintendent of Police. The District Magistrate himself will similarly send a report to the Superintendent of Police in cases of which he himself takes cognizance. (4) The Local Government has prescribed the following supplementary procedure to be adopted in the case of complaints against police officers in those districts where abuses of the law with the object of victimising such officers or hampering investigation is rife. The District Magistrate will order that all petitions against police officers shall be presented to him personally. If he considers that these petitions are of a frivolous or factious nature, it is within his discretion to take no action on them. The District Magistrate will order that all petitions against police officers shall be presented to him personally. If he considers that these petitions are of a frivolous or factious nature, it is within his discretion to take no action on them. When he considers an enquiry to be necessary he will use his discretion whether to send the papers to the Superintendent of Police or to a Magistrate for judicial enquiry. In the case of formal criminal complaints, the District Magistrate will arrange for all cases to be transferred from other courts to his own. (5) Orders have been issued by the Hon’ble Judges of the High Court making it obligatory on all civil and criminal courts, whenever they make strictures on the personal character or professional conduct of a police officer, to send a copy of the judgment to the executive authorities. In the case of the High Court itself the copies will be forwarded to the Local Government. In the case of all other courts (including Courts of Sessions), the copies will be sent by the Judges and Magistrates concerned to the District Magistrate. (6) In cases in which strictures are passed on the conduct of the police by a Sessions Court or by a Magistrate’s Court and no specific recommendation is made by the Court making such strictures that an enquiry should be made, the District Magistrate will decide whether an investigation into the matter is necessary, and if so, whether it shall be conducted by a police officer or by a selected 1 [Executive Magistrate]. If he decides that an investigation shall be made, the procedure subsequent to such investigation shall be that laid down in subrule (2) above. In cases in which the court passing strictures on the conduct of the police suggests that an enquiry should be made, the District Magistrate will comply with such request in accordance with the procedure prescribed in paragraphs (1) and (2) above. When strictures on the conduct of the police are made by the High Court and communicated to the Local Government direct in accordance with paragraph (5) above, the instructions of Government as to the action to be taken by the local authorities will be communicated to them through the ordinary channels. In cases in which the High Court suggests that an enquiry should be made the Local Government will give orders accordingly. In cases in which the High Court suggests that an enquiry should be made the Local Government will give orders accordingly. (7) Rules 24.14 and 24.15 provide for reports of all serious charges against the police being communicated to the Local Government by a special report. In cases where such serious charges arise from strictures passed by criminal courts, the Superintendent of Police and the District Magistrate should communicate, either in the report itself or in a covering letter, the procedure which they propose to adopt and any information or notes in connection with the case which they consider should be brought to the notice of Government. Rule 24.15 provides the opportunity for Deputy Inspectors- General and Commissioners similarly to communicate their comments to the local Government.” 7. Careful perusal of aforesaid rule reveals that information with regard to receipt of complaint, if any, by the Superintendent of Police against the police official while on duty or in discharge of duty shall be furnished to the District Magistrate. It is District Magistrate, who would decide whether investigation shall be conducted by the police officer or by Executive Magistrate. Rule 16.38(2) further provides that when investigation of such a complaint establishes a prima facie case, a judicial prosecution shall normally follow, however in case department proposes to proceed departmentally against the delinquent officer, prior concurrence of District Magistrate is necessary. Before initiation of disciplinary proceedings, it is necessary for District Magistrate to record reasons for doing, so when such procedure is followed and concurrence is given by District Magistrate, disciplinary proceedings are to be concluded in terms of procedure prescribed in Rule 16.24 of the Punjab Police Rules. 8. Hon’ble Apex Court in State of Uttar Pradesh and others Vs. Surinder Pal Singh , reported in AIR 1989 SC 811 , has held that purpose of Rule 16.38 of Punjab Police Rules is to check the exercise against the victimization of police officers etc., and such aspect should have been considered before initiating Departmental inquiry as well as criminal proceedings. It is relevant to reproduce para-10 of aforesaid judgment:- “10. Surinder Pal Singh , reported in AIR 1989 SC 811 , has held that purpose of Rule 16.38 of Punjab Police Rules is to check the exercise against the victimization of police officers etc., and such aspect should have been considered before initiating Departmental inquiry as well as criminal proceedings. It is relevant to reproduce para-10 of aforesaid judgment:- “10. After referring to earlier decisions of this Court in the cases of Delhi Administration v. Channan Shah (1969) 3 SCR 653 : ( AIR 1969 SC 1108 ), Union of India v. Ram Kishan (1971) 2 SCC 349 : ( AIR 1971 SC 1402 ) and State of Uttar Pradesh v. Babu Ram Upadhya, ( AIR 1961 SC 751 ) (supra) on which reliance seems to have been placed on behalf of the respondent of that case, it was held that the aforesaid decisions “related to departmental enquiries and not criminal prosecutions for offences committed by the delinquent police officers. The pronouncements in these cases will, therefore, govern only cases where departmental enquiries are held in contravention of the procedure prescribed by the Police Rules. The reason for a special procedure being prescribed in the Rules for investigations before departmental enquiries are held against delinquent police officers is not far off to see. In the very nature of their duties, the members of the police force would often stand exposed to criticism and complaints by not only the members of the Public but also by the members of the force themselves and consequently they stand placed more vulnerable than members of other Government services, of being implicated in false or exaggerated charges.” After considering the nature and purpose of Rule 16.38 of the Punjab Police Rules, it was further held:- “The procedure envisaged by the Rule is for effective check being exercised against victimisation of efficient and honest police officers on the one hand and favouritism being shown to the delinquent police officers on the other. These rules were not intended to replace and certainly cannot override the provisions of the Criminal Procedure Code. These rules were not intended to replace and certainly cannot override the provisions of the Criminal Procedure Code. The Full Bench was therefore in error in taking the view that the Rules lay down a special procedure for investigation of all offences committed by the members of the police force and, that they have overriding effect over the provisions of the Criminal Procedure Code in terms of Sections 4 and 5 of the Code.” 9. Similarly view was taken by Hon’ble Apex Court in case tilted State of Haryana & others versus Ranbir Singh, Civil Appeal No.8522 of 2008, decided on 23.09.2008, wherein it has been held as under:- “Whether the dismissal order was null and void for not obtaining prior concurrence of the District Magistrate in terms of Rules 16.38 of PPR as applicable to the State of Haryana which is the constitutional mandate under Article 311 of the Constitution”? The said question has been answered in the following manner:- “Rule 16.38 proceeds on the basis that where the judicial prosecution is pending and the Department seeks to hold a Departmental Inquiry simultaneously, prior concurrence of the District Magistrate is required to be taken. Therefore, all the Courts below were right in coming to the conclusion that the Departmental Inquiry which was conducted was null and void, that it was in the absence of concurrence of the District Judge.” 10. While placing reliance upon the aforesaid judgment passed by Hon’ble Apex Court, Division Bench of this Court in case titled Mohinder Singh versus State of H.P. & others, CWP No.3066 of 2019, decided on 17.12.2019 also held that purpose of deferring the departmental inquiry is to prevent the respondent department from causing prejudice to the petitioner. The purpose of issuance of second show cause notice to the petitioner is to highlight or establish fundamental flaw in the departmental proceedings or the departmental proceedings are otherwise contrary to the provisions of law, including the principles of natural justice. It is profitable to reproduce para-7 & 8 of aforesaid judgment:- “7. The purpose of deferring the Departmental Inquiry is to prevent the respondent-Department from causing prejudice to the petitioner. It is profitable to reproduce para-7 & 8 of aforesaid judgment:- “7. The purpose of deferring the Departmental Inquiry is to prevent the respondent-Department from causing prejudice to the petitioner. The inference we should draw is that if the Charges in criminal case and Article of Charges in Departmental Inquiry are one and the same and in case if the prejudice is established by the petitioner, then to that extent the proceedings in the Departmental Inquiry has to be stayed. Though, it is for the petitioner to have obtained stay at the initial stage, but he has participated in the Departmental Inquiry without raising any ground or prejudice till the enquiry is concluded. Now the enquiry report has been forwarded to the disciplinary authority and the notice has been issued to him to explain as to why he be not dismissed from service. The purpose of issuance of second show cause notice to the petitioner is to highlight or establish fundamental flaw in the departmental proceedings or the departmental proceedings are otherwise contrary to the provisions of law, including the principles of natural justice. The purpose of issuance of said notice is to provide an opportunity to the petitioner to establish his innocence or to establish the error committed either by the Inquiry Officer or the Presenting Officer. However, the respondents have issued a notice directing the petitioner to make an answer as to why he should not be dismissed from service. It shows that the respondents have already made up their mind to dismiss the petitioner from service, which is contrary to law and also in violation of Articles 14 and 311 of the Constitution. 8. With regard to Rule 13.68, which was also subject matter before the Hon’ble Supreme Court in State of Uttar Pradesh and others vs. Surinder Pal Singh, the Hon’ble Supreme Court has held in para-10 that the purpose of Rule 16.38 of the Punjab Rules is to check the exercise against the victimization of police officers etc. That should have been considered by the Departmental Inquiry as well as in the criminal proceeding also”. 11. Aforesaid expositions of law taken into consideration, clearly reveals that provisions contained under Rule 16.38 of Punjab Police Rules, are not directory but mandatory and as such, needs to be adhered to scrupulously before initiating disciplinary proceedings. That should have been considered by the Departmental Inquiry as well as in the criminal proceeding also”. 11. Aforesaid expositions of law taken into consideration, clearly reveals that provisions contained under Rule 16.38 of Punjab Police Rules, are not directory but mandatory and as such, needs to be adhered to scrupulously before initiating disciplinary proceedings. In the instant case, this Court finds from the record that petitioner stands already acquitted in both the FIR, which were actually made basis to issue charge sheet. Though, Mr. Sudhir Bhatnagar, learned Additional Advocate General while making this Court peruse the record contended that ex post facto approval was taken by District Magistrate, but since as per Rule 16.38 prior concurrence before initiation of disciplinary proceedings is required to be taken from District Magistrate, ex post facto sanction, if any, given by District Magistrate, is of no consequence. Since, this Court on account of aforesaid deliberations is of definite view that no disciplinary proceedings could have been initiated against the petitioner without there being any concurrence of District Magistrate, disciplinary proceedings in case of the petitioner are held to be void and as such, same deserves to be quashed and set-aside. 12. Consequently, in view of the detailed discussion made hereinabove, this Court finds merit in the present petition and accordingly same is allowed and charge sheet dated 6.1.2015 (Annexure A-1), enquiry report (Annexure A-2), show cause notice dated 21.2.2015 (Annexure A-4), penalty order dated 22.7.2005 (Annexure P-5) and orders dated 23.3.2016, rejecting the appeal and revision (Annexure A-7), are quashed and set-aside and petitioner is ordered to be reinstated with all the consequential benefits. Pending applications, if any, also stand disposed of.