Punjab-Haryana High Court
Hawa Singh vs State Of Haryana And Others on 28 March, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
C.W.P.No.2715 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
C.W.P.No.2715 of 2011
Date of Decision:- 28.03.2012
Hawa Singh ....Petitioner(s)
vs.
State of Haryana and others ....Respondent(s)
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CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
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Present:- Mr.Rakesh Nagpal, Advocate,
for the petitioner.
Mr.Sunil Nehra, Sr.DAG, Haryana.
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AUGUSTINE GEORGE MASIH, J.
Petitioner who is a dismissed police officer has approached this Court praying for quashing of the enquiry report dated 7.12.2007 (Annexure P-1), order dated 31.12.2007 (Annexure P-4) passed by the Superintendent of Police, Kurukshetra-respondent No.4 whereby the petitioner has been dismissed from service vide order dated 15.2.2008 (Annexure P-5) passed by the Inspector General of Police, Ambala Range, Ambala-respondent No.3 i.e. Appellate Authority and order dated 2.9.2008 (Annexure P-7) passed by the Director General of Police, Haryana-respondent No.2 dismissing the revision preferred by the petitioner on the ground that the findings recorded by the Inquiry Officer during the enquiry proceedings is based on no evidence and that the Punishing Authority has violated Rule C.W.P.No.2715 of 2011 -2- 16.2(1) of the Punjab Police Rules, 1934 (for short 'the Rules') which mandate consideration of the length of service rendered by the petitioner for the grant of pension. An additional ground has been taken by the petitioner that during the pendency of the present writ petition, FIR which was initially registered for the same incidence in which the petitioner was tried has resulted in acquittal of the petitioner by the Sub Divisional Judicial Magistrate, Pehowa on 16.9.2011 (Annexure P-11) and, therefore, the impugned orders deserve to be set aside.
On behalf of the respondents, it has been contended that the departmental proceedings have been held against the petitioner in accordance with the Rules and there being no illegality or irregularity committed during the said proceedings, the order of dismissal has been rightly passed against the petitioner which has been upheld by the Appellate Authority as well as the Revisional Authority. Further, it has been contended that the departmental proceedings against a delinquent employee and the criminal proceedings against an accused are two different proceedings and mere acquittal in the trial would not vest an absolute right in an employee to be reinstated when the misconduct for which he has been found guilty in the departmental proceedings and action taken against him in accordance with law even if the incident for which the trial and the departmental proceedings were commenced is the same. On this basis, it has been prayed that the writ petition deserve to be dismissed.
Counsel for the parties have addressed arguments on these lines and have made their respective submissions.
C.W.P.No.2715 of 2011 -3-
Having heard the counsel for the parties and on going through the records of the case, I am of the considered opinion that the writ petition preferred by the petitioner cannot succeed.
Briefly the facts of the case are that the petitioner was posted as a guard at Police Station Pehowa on 31.8.2007 when one accused Shish Pal @ Sat Pal s/o Sh.Parmal Singh who was a hardened criminal, accused in various cases was remanded to police custody by the Court in FIR No.305 dated 24.8.1007 under Sections 457/308 IPC at Police Station Pehowa escaped from the police lockup due to gross negligence on the part of the petitioner as the petitioner permitted the accused to ease himself in the toilet on the pretext that he was feeling pain in the stomach wherefrom he fled away by breaking open the ventilator. In this connection, FIR No.311 dated 31.8.2007 was registered at Police Station Pehowa under Sections 216, 223 IPC against the petitioner and accused Shiv Kumar @ Toni son of Satpal and Shish Pal @ Satpal @ Chusa son of Parmal Singh. For the gross- carelessness of the petitioner, departmental enquiry was initiated against him on 1.9.2007 which was entrusted to the Deputy Superintendent of Police (HQ), Kurukshetra. Petitioner despite various communications did not associate himself in the departmental enquiry.
Order was obtained from the Punishing Authority by the Inquiry Officer to proceed against him ex parte which was granted and thereafter the evidence of the prosecution was recorded. After recording the statement of the prosecution witnesses, petitioner was called upon to submit his reply and list of defence witnesses. This communication was received by the petitioner on 2.12.2007. He preferred not to produce any C.W.P.No.2715 of 2011 -4- evidence. He appeared before the Inquiry Officer on 5.12.2007 and submitted a written reply in support of his defence. On considering the prosecution evidence and the written reply filed by the petitioner, Inquiry Officer submitted his report on 7.12.2007 holding the petitioner guilty of the charges levelled against him as the same were proved.
On receipt of the enquiry report, the Superintendent of Police, Kurukshetra, the Punishing Authority, issued a show cause notice as to why order of dismissal from service for gross-misconduct and negligence/carelessness be not passed against him. An opportunity to make a written representation within a period of 15 days was given with an option of opportunity of personal hearing also within this prescribed time. Petitioner submitted his written reply dated 21.12.2007 and was also afforded an opportunity of personal hearing on 27.12.2007. On consideration of the submissions of the petitioner, a detailed order was passed by the Superintendent of Police, Kurukshetra on 13.7.2007 wherein he came to the conclusion that the charges stood proved against the petitioner and the gross-misconduct/carelessness of the delinquent stood proved and proceeded to dismiss the petitioner from service. While passing this order of dismissal, the Superintendent of Police, Kurukshetra, took into consideration the service period of the petitioner and recorded that he was appointed as a Constable on 29.7.1992, his length of service was less than 20 years, thus, he was not entitled to pension. Appeal preferred against the said order was dismissed by the Inspector General of Police, Ambala Range, Ambala-respondent No.3. Similarly, the Director General of Police, Haryana dismissed the revision preferred by the petitioner leading to the C.W.P.No.2715 of 2011 -5- filing of the present writ petition.
During the pendency of the writ petition, Sub Divisional Judicial Magistrate, Pehowa, vide judgment dated 16.9.2011 (Annexure P-11), acquitted the petitioner in the criminal trial on the ground that the prosecution has failed to prove its case beyond reasonable doubt against the petitioner entitling him and Shiv Kumar to acquittal whereas Shish Pal was held guilty under Section 224 IPC.
First contention of the counsel for the petitioner that the ex parte departmental proceedings held against the petitioner is without giving an opportunity to the petitioner and, therefore, the enquiry proceedings are not in accordance with law. This contention of the counsel for the petitioner does not carry any force as the Punishing Authority in its order dated 31.12.2007 has specifically dealt with this aspect wherein it has been held that on three occasions, petitioner had himself signed the notices issued by the Inquiry Officer for appearing in the enquiry proceedings but despite that the petitioner chose not to participate in the departmental enquiry proceedings leaving no scope for the Inquiry Officer but to obtain an order from the Punishing Authority to proceed against the petitioner ex parte which approval was granted by the Punishing Authority on 16.10.2007 and thereafter the statement of the witnesses of the prosecution was recorded by the Inquiry Officer.
Counsel for the petitioner has raised a second contention that the findings recorded by the Inquiry Officer in his report dated 7.12.2007 ( Annexure P-1) is based on no evidence. This contention of the counsel for the petitioner is totally misplaced as is apparent from the enquiry report that C.W.P.No.2715 of 2011 -6- the Inquiry Officer has, in detail, referred to the statements of the prosecution witnesses. The Inquiry Officer has also taken into consideration the submissions made by the petitioner in his written reply. A perusal of the same would not persuade this Court to come to a conclusion that present is a case of no evidence entitling him to the prayer of quashing the enquiry report dated 7.12.2007. In exercise of judicial review, the Court would not go into the details of the evidence and the limited scope of this Court in exercise of its writ jurisdiction is to the violation of the Statutory Rules governing the departmental proceedings.
Which would lead this Court to move on to the next submission made by the counsel for the petitioner that the Punishing Authority has not complied with Rule 16.2(1) of the Rules which mandate taking into consideration the length of service of the delinquent employee and his claim to pension while imposing the punishment. This contention of the counsel for the petitioner is devoid of merit for the reason that the Punishing Authority has specifically dealt with this aspect while passing the order dated 31.12.2007 (Annexure P-4) wherein it has been stated that as the petitioner was appointed as Constable in Police Department on 27.7.1992 and the service period of the petitioner was less than 20 years, therefore, there is no scope for granting pension to the petitioner as there is no provision for granting pension before completion of 20 years service. Counsel for the petitioner has failed to refer to any of the provisions under the Statutory Rules governing the grant of pension which would entitle the petitioner to claim of pension. Thus, this contention of the counsel for the petitioner stands rejected.
C.W.P.No.2715 of 2011 -7-
Another ground which has been pressed into service by the counsel for the petitioner is that the petitioner having been acquitted by the trial Court in the FIR registered against him vide judgment dated 16.9.2011 (Annexure P-11), entitling him to reinstatement in service. This contention of the counsel for the petitioner deserves to be rejected for the simple reason that departmental proceedings and criminal proceedings are two distinct statutory proceedings where one cannot be equated with the other. It is a settled proposition of law that in departmental proceedings, the requirement to prove a misconduct is preponderance of commission of an act whereas in the criminal proceedings the offence on the basis of evidence has to be proved beyond reasonable doubt. That apart, in the judgment dated 16.9.2011 passed by the Sub Divisional Judicial Magistrate, Pehowa, petitioner has been acquitted of the charges for the reason that the prosecution failed to prove its case against the petitioner beyond reasonable doubt which entitle him to acquittal meaning thereby that he has been acquitted by giving him the benefit of doubt. That apart, in the departmental proceedings, the allegations against the petitioner stood proved which led to the passing of order of dismissal from service of the petitioner which is in accordance with law.
Another submission has been made by the counsel for the petitioner that the finding recorded by the Punishing Authority against the petitioner that the misconduct of the petitioner was of a gravest act of misconduct, does not fall in the explanation provided under Rule 16.2(1) of the Rules. Reliance has been placed upon a Division Bench judgment of this Court in the case of Dhan Singh vs. State of Haryana, 2008(3) SCT C.W.P.No.2715 of 2011 -8-
816. This contention of the counsel for the petitioner cannot be accepted in the light of the judgment passed by this Court in CWP No.4782 of 2010 titled as Beer Singh, Ex-Constable No.2392/FBD vs. State of Haryana and others, decided on 14.03.2012, wherein the provisions as contained under Section 16.2(1) and explanation thereto has been considered and has been held as follows:-
"For appreciating the scope and ambit of Rule 16.2 (1) of the Rules, 1934 and the explanation attached thereto, reproduction of the said Rule would be essential which reads as follows:-
"16.2 Dismissal-(1) Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. In making such an award regard shall be had to the length of service of the offender and his claim to pension.
"Explanation.- for the purposes of sub-rule
(1), the following shall, inter alia, be
regarded as gravest acts of misconduct in
respect of a police officer, facing
disciplinary action.-
(i) Indulging in spying or smuggling
activities;
C.W.P.No.2715 of 2011 -9-
(ii) Disrupting the means of transport or
of communication;
(iii) Damaging public property;
(iv) Causing indiscipline amongst fellow
policemen;
(v) Promoting feeling of enmity or hatred
between different classes of citizens of India
on grounds of religion, race, caste,
community or language;
(vi) going on strike or mass casual leave
or resorting to mass abstentions;
(vii) spreading disaffection against the
Government; and
(viii) causing riots and the strife."
Rule 16.2 (1) deals with the situation where
the order of dismissal of a police officer can be passed. It provides that this punishment of dismissal shall only be awarded (i) for the gravest acts of misconduct and (ii) as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service of the officer. While passing such a punishment, regard is mandated to be had to the length of service of the offender and his claim to pension. Although 'gravest acts of misconduct' term has been used in the Rule but it has been held in State of Punjab vs. Gurdip Singh, 1995 C.W.P.No.2715 of 2011 -10- (1) RSJ 641, that even a single act of misconduct can, in a given situation, amount to the gravest act of misconduct but the mandate of the rule making authority is clear that the punishment of dismissal from service has not to be awarded in the case of a misconduct of ordinary nature. In Bhagwat Parsad vs. Inspector General of Police and others, 1967 SLR 807, it has been held that the use of word 'acts' did not exclude a single act of misconduct. In order to give effect to the legislative intent words in plural number may be construed to include the singular and the words importing the singular only, may be applied to plurality of acts, things or persons. In order to gauge gravity of misconduct, what matters, is not frequency but as obliguity or delinquency.
It was for the police officer who judged the infraction of the police rules to determine the seriousness of the misconduct and to decide upon the suitability of the punishment. This would show that it is the gravity of the misconduct which would determine the punishment to be imposed upon the delinquent employee and for that such misconduct proving incorrigibility and complete unfitness for police service, if found, punishment of dismissal shall be awarded. Regard, however, under those circumstances, also shall be had to the length of service of the offender and his claim to pension, which C.W.P.No.2715 of 2011 -11- again would be dependent upon the misconduct proved against the delinquent employee.
Explanation to Rule 16.2 (1) has to be read in the context of the above. Although eight misconducts have been spelt out in this explanation, which have been mandated to be regarded as gravest acts of misconduct in respect of a police officer facing disciplinary action. If any of them are proved in the disciplinary proceedings to have been committed by a police official, nothing more is required as it would amount to a gravest act of misconduct. The word 'inter-alia' used between "the following shall" and "be regarded as gravest acts of misconduct in respect of a police officer, facing disciplinary action" in the explanation is very significant and indicates and explains the intent and purpose of the rule making authority. The word 'inter-alia', as per Chambers Dictionary, means 'among other things', which clarifies that there can be other acts of misconduct also which could be regarded as gravest acts of misconduct. Thus, assigning a restrictive meaning to the term 'gravest acts of misconduct' to those acts only, which have been mentioned in the explanation, would be subtracting something from the rule itself as the intention of the rule making authority is not this. In Dhan Singh's case (supra), this aspect and the placement of the word 'inter- C.W.P.No.2715 of 2011 -12- alia' used in the explanation has not been discussed and its effect has also not been considered. The explanation when read by giving effect to the expression 'inter-alia' and the place at which it finds mention would lead the Court to a conclusion, which is not in consonance with the one as reached in Dhan Singh's case. By not giving effect to the impression 'inter-alia' would virtually mean overlooking it as if the said expression did not exist in the rule itself which would result in obliterating it having the effect of virtually deleting it. This would amount to open and blatant violation of the simple meaning of the statute. It is a settled preposition of interpretation that each word used in the Statute has to be given effect to as per its literal meaning and effect and in doing so, effort should be made to fulfil the object with which the said word/expression has been used by its framers.
In the light of the above, the contention of the counsel for the petitioner that the misconduct of absence from duty cannot be a gravest act of misconduct as it does not find mention in the Explanation to Rule 16.2(1), deserves to be rejected as depending upon the gravity of the misconduct, a single act of misconduct would fulfil the mandate of Rule 16.2 of the 1934 Rules subject however, to the qualifications attached thereto in the Rule itself."
C.W.P.No.2715 of 2011 -13-In view of the above, finding no merit in the present writ petition, the same stands dismissed.
March 28, 2012 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE