Punjab-Haryana High Court
Si Sukhwinder Singh vs State Of Punjab And Others on 22 February, 2012
CWP No. 11553 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CWP No. 11553 of 2010
Date of Decision: 22.02.2012
SI Sukhwinder Singh ...... Petitioner
Versus
State of Punjab and others ..... Respondents
Coram: Hon'ble Mr. Justice Ajay Tewari
Present: Mr.GPS Bal, Advocate
for the petitioner.
Ms.Monica Chhibber Sharma, DAG, Punjab.
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1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Ajay Tewari, J.(Oral):
This petition has been filed for issuance of a writ in the nature of Certiorari for quashing the impugned order dated 24.3.2003 passed by respondent No.2, order dated 23.2.1998 passed by respondent No.3 and order dated 19.8.97 passed by respondent No.4 whereby a major punishment of forfeiture of five years service with permanent effect was imposed upon him for the loss of his service revolver.
The brief facts are that petitioner, while being posted as Incharge, Police Post Siswan was provided with a service revolver .38 bore. On 22.7.94 when he was coming to Kurali on his private motor cycle, the road was uneven and due to jerks his revolver fell down somewhere. He brought this fact to the knowledge of his superiors and ultimately an FIR CWP No. 11553 of 2010 2 No. 55 dated 3.8.94 was registered against him under Section 409 of the IPC which was later on cancelled. A departmental inquiry was held in which punishment of forfeiture of five years approved service with permanent effect was imposed upon him. The order regarding recovery of the price of the revolver and 30 cartridges was also passed and the petitioner paid the price of the both. His appeal was also dismissed by respondent No.3 . He filed a revision before respondent No.2 which was not decided and, therefore, he filed a writ petition viz., CWP 19105 of 2001 which was disposed of by a Division Bench of this Court with a direction to respondent No.2 to decide his revision within three months. In pursuance of the said orders of this Court, respondent No.2 rejected his revision being devoid of any force. He filed a mercy petition to respondent No.2 stating therein that in similar cases of loss of weapon lesser punishment was awarded but to no avail. He then filed a mercy petition again to respondent No.1 which is still pending. The petitioner has also given the instance of one SI Gurbachan Singh who was charged with the same allegations but the punishment imposed upon him was only that of recovery of the lost arm/cartridges whereas he has been discriminated for the same charge and the punishment of forfeiture of five years approved service is too harsh. That is why the petitioner is before this Court.
In reply the respondents have taken the plea that after having considered the reply filed by the petitioner to the chargesheet the punishment order was passed. He was given full opportunity of hearing. It is further pleaded that the petition is hopelessly barred by delay and latches.
Learned counsel for the petitioner has argued that the petitioner CWP No. 11553 of 2010 3 has already deposited the price of the revolver and the cartridges as provided under Rule 6.22 of the Punjab Police Rules. The same is reproduced herein below:-
"6.62 When any weapon forming part of police armament is lost or seriously damaged, or when ammunition or fired cases, exceeding give in any one case, are lost a committee of three officers, of whom at least one shall be a Gazetted Officer, shall be appointed by the Superintendent to enquire into the circumstances under which the weapon was lost or damaged and to decide whether the cost of replacement shall be borne by the Government or otherwise.
The report of the Committee,which shall be in the prescribed form A.F.A. -2, shall be submitted to the Deputy Inspector General for approval and statement(I..F.A. -498) on the reverse of which the Deputy Inspector General will pass his orders. This statement shall be attached to the indent sent to the arsenal for the replacement of arms lost or damaged. (2) When the loss, destruction or damage of any weapon is found by the committee assembled in accordance with sub-rule (1) above to be due to the neglect or malice of any police officer, such committee shall record its opinion, whether the cost of repair or replacement should be borne wholly or in part by the officer at fault. Unless there are special reasons to the contrary, the whole cost shall be charged from the officer at fault."
A perusal of the aforesaid rule clearly shows that the maximum punishment for the loss of arms is the payment of the cost of the same. In the backdrop of the aforesaid rule, learned counsel for the petitioner has argued that the punishment imposed upon him is too harsh. The charge of criminal breach of trust is not made out against the petitioner. CWP No. 11553 of 2010 4
On the other hand learned DAG has argued that this is a case of sheer negligence as the revolver must not have been properly holstered otherwise it would not have fallen howsoever uneven the road may have been. She has further argued that the petition is barred by limitation as the petitioner has filed the same after a period of almost 13 years. In this context she has relied upon Attar Chand and others v. The State of Haryana and others reported as 1998(1) RSJ 430.
Reliance may be placed on Union of India and others v.
Tarsem Singh (2008) 8 SCC 648 wherein the Hon'ble Supreme Court held as follows:-
"5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the CWP No. 11553 of 2010 5 consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
Further reliance may be placed on a decision of the Hon'ble Supreme Court in the case of Union of India and another v. S.S.Ahluwalia, 2007(7) SCC 257, has held as follows :-
".... The scope of judicial review in the matter of imposition of penalty, as a result of disciplinary proceedings, is very limited. The Court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved. In such a case, the Court is to remit the matter to the disciplinary authority for reconsideration of the punishment. In an appropriate case, in order to avoid delay the court can itself impose lesser penalty......"
In the totality of circumstances of this Court I am of the view that the punishment awarded to the petitioner is disproportionate to the charge framed against him. The ends of justice would be met if the same is reduced to forfeiture of three years service instead of five as awarded by the punishing authority.
Consequently, the petition is disposed of a with a direction to the respondents to reduce the punishment to forfeiture of three years approved service instead of five years with permanent effect.
(AJAY TEWARI)
February 22, 2012 JUDGE
sunita