Himachal Pradesh High Court
Hari Singh vs State Of H.P. And Others on 23 February, 2021
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No.1506 of 2019 Reserved on : January 4, 2021 .
Date of Decision : February 23, 2021
Hari Singh ....Petitioner.
Versus
State of H.P. and others ....Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? Yes.
For the Petitioner : Mr. K.S. Thakur, Advocate. For the respondents : Mr. Desh Raj Thakur, Additional Advocate General and Mr. R.P. Singh, Deputy Advocate General.
Vivek Singh Thakur, Judge Petitioner has approached this Court against Show Cause Notice dated 21.3.2017, Annexure A-1, issued by Superintendent of Police, Mandi, District Mandi, Himachal Pradesh, calling upon the petitioner to explain as to why penalty of censure be not awarded to him for carelessness, negligence, insubordination and poor investigation skill on his part in case FIR No.81/16 dated 22.2.2016, registered under Section 279 of the Indian Penal Code in Police Station Aut, District Mandi, Himachal Pradesh; assailing recording of adverse remarks in his Annual Confidential Report (ACR) for the period from ::: Downloaded on - 23/02/2021 20:15:27 :::HCHP CWPOA No.1506 of 2019 ...2...
1.4.2016 to 31.3.2017 about his integrity, for alleged poor quality of investigation in case FIR No.81/16 referred supra; Memo dated 11.10.2017 (Annexure A-3); and also against .
rejection of his representation and appeal vide order dated 2.1.2018 (Annexure A-5) and 25.8.2018 (Annexure A-7) respectively, affirming the recording of adverse entries. Petitioner is also aggrieved by action of respondents- Department for not promoting him alongwith his batch- mates, despite passing the Upper Course successfully, the requisite qualification for promotion as Sub Inspector.
2. Main prayer of the petitioner is to set aside and quash the Show Cause Notice dated 21.3.2017, Annexure A- 1; Memo dated 11.10.2017, Annexure A-3; rejection order dated 2.1.2018, Annexure A-5; order in appeal dated 25.8.2018, Annexure A-7; and to direct the respondents to promote him from the due date, with all consequential benefits, including financial benefits.
3. Case of respondents-Department is that case FIR No.81/16, dated 22.7.2016, under Section 279 of the Indian Penal Code was registered in Police Station Aut against one Hardeep Singh and petitioner had conducted investigation in the said case. As accused Hardeep Singh had fled from the spot after the accident, Investigating Officer (petitioner) had added Sections 134 and 187 of the ::: Downloaded on - 23/02/2021 20:15:27 :::HCHP CWPOA No.1506 of 2019 ...3...
Motor Vehicles Act in the case. During investigation, petitioner had recorded statements of Balbir Singh (conductor of the Bus involved in the accident), Ved Ram .
(owner of Dhaba) and other witnesses, under Section 161 of the Code of Criminal Procedure. In statements of Balbir Singh, Sanjay Kumar and Pawan Kumar, timing of the accident was mentioned as 11 p.m., whereas as per statement of complainant the accident had taken place at 9.45 p.m. Further that, in Mechanical Examination Report no mechanical fault was found in the bus which had dashed with two parked vehicles, however, the Investigating Officer had failed to trace accused Hardeep Singh and had submitted untraced report on 6.11.2016, which was sent to the Office of Supervisory Officer, i.e. Deputy Superintendent of Police (Head Quarters), Mandi {Dy.SP(HQ)} alongwith other records of the case, on perusal whereof, the Dy.SP(HQ) was not satisfied and had issued advisory/ guidelines to the petitioner vide letter dated 7.12.2016, with direction to comply with the guidelines, but despite that the petitioner again had prepared and submitted untraced report on 17.1.2017 and Dy.SP(HQ) had again found that efforts made by the petitioner, to arrest the accused, were not satisfactory and directions/guidelines issued earlier were not complied with by the petitioner and, ::: Downloaded on - 23/02/2021 20:15:27 :::HCHP CWPOA No.1506 of 2019 ...4...
therefore, Memo dated 19.1.2017 was issued to the petitioner directing him to strictly comply with the directions, issued earlier, in the case. But, petitioner again .
prepared and submitted cancellation report dated 27.3.2017, mentioning therein further that accident had taken place due to sudden short-circuit in the wiring of the bus in question.
4. It is case of the respondents-Department that there was contradiction with respect to timing of accident in the statements of witnesses and the complainant and the reason for accident was contrary to the mechanical examination report and there was lapse on the part of the petitioner in tracing accused Hardeep Singh and, therefore, Dy.SP(HQ), vide letter dated 15.2.2017, had recommended for regular Departmental Enquiry against the petitioner for lapses on his part being Investigating Officer in case FIR No.81/16 referred supra.
5. It is also case of the respondents-Department that vide letter dated 29.9.2017, Dy.SP(HQ) had again reiterated his recommendation for regular Departmental Enquiry with further recommendation to handover investigation of the case to Inspector Ajay Kumar, SHO, Police Station Aut.
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6. As the petitioner had been transferred to Police Training College Daroh, District Kangra, Himachal Pradesh, therefore, first recommendation for regular Departmental .
Enquiry was sent to the Principal of the College, vide letter dated 12.4.2017 for taking necessary action. Investigation of the case was also entrusted to the Inspector/SHO, Police Station Aut, who, after conducting investigation, had also prepared untraced report and filed it before the trial Court, i.e. JMIC (1), Mandi, on 27.4.2018 for judicial verdict.
7. It is submitted in the reply that in the aforesaid facts and the circumstance, the Reporting Authority had rightly recorded the adverse remarks in the ACR of the petitioner for the period from 1.4.2016 to 31.3.2017, which were agreed by the Reviewing Authority. However, the Accepting Authority, before taking final decision, had communicated those adverse remarks to the petitioner vide Memo dated 11.10.2017, Annexure A-3 and after examining comments of the Reporting and Reviewing Authorities, had come to the conclusion that adverse remarks, in question, were rightly recorded due to poor quality of investigation in case FIR No.81/16 referred supra and had rejected representation of the petitioner vide order dated 2.1.2018, Annexure A-5. Further appeal preferred by the petitioner against adverse remarks was considered by the Competent ::: Downloaded on - 23/02/2021 20:15:27 :::HCHP CWPOA No.1506 of 2019 ...6...
Authority and was rejected being devoid of merit by passing a speaking order dated 25.8.2018, Annexure A-7.
8. It is version of the petitioner that complete .
address of accused Hardeep Singh was not known to the complainant, witnesses and even to the owner of the Bus, who could only inform that Hardeep Singh was resident of District Bilaspur. During investigation, owner of the Bus, on the basis of Driving Licence of Hardeep Singh, had revealed that Hardeep Singh son of Atma Ram was resident of Swarghat, Tehsil Sri Naina Devi, District Bilaspur, Himachal Pradesh and on the basis of it petitioner had made search in various areas of Swarghat but the said address was not found to be correct and, thereafter, search to trace the accused-driver Hardeep Singh was made in Darlaghat Cement Factory, in the areas around villages Khurani and Chhadol of District Bilaspur and on finding no clue about the whereabouts of accused Hardeep Singh, untraced report was submitted on 6.11.2016 and after receiving the case file again, search to trace the accused was made in J.P. Cement Factory, Barmana, Bagha, Darlaghat Truck Unions and other truck drivers, and also in village Dadoh in District Bilaspur and in Private Bus Union of District Kullu and a notice under Section 133 of the Motor Vehicles Act was also issued to the owner of the bus, in response thereto ::: Downloaded on - 23/02/2021 20:15:27 :::HCHP CWPOA No.1506 of 2019 ...7...
owner of the bus had replied that he was not having any knowledge about the correct address of driver and statements of various persons were also recorded. Call .
detail of mobile number of owner of the Bus was also obtained but on the relevant dates no talks in Bilaspur area were found therein and, therefore, again untraced report was submitted. Thereafter, in compliance of letter dated 19.1.2017, effort to trace accused Hardeep Singh was again made in March 2017 in Swarghat, Kainchi Mod, Sir Naina Devi and J.P. Factory Bagheri, and Nand Gaon District Solan and also in Panjpiri, Chhadol, etc. other places. According to the petitioner, he had also requested the Police Stations Sadar (Bilaspur), Swarghat, etc. for tracing accused Hardeep Singh but finding no clue about him he had again submitted untraced report.
9. According to the petitioner, he was neither careless nor negligent and has not committed an act to be referred as 'insubordination', carelessness or negligence, reflecting poor investigation skill on his part in investigation of FIR No.81/16 referred supra.
10. Petitioner has placed on record copy of order dated 8.8.2018, passed by Additional Chief Judicial Magistrate, Court No.1, Mandi, whereby untraced report submitted by SHO Aut has been accepted by the Court and ::: Downloaded on - 23/02/2021 20:15:27 :::HCHP CWPOA No.1506 of 2019 ...8...
also copy of order dated 1.5.2018, passed by Superintendent of Police, Police Training College, Daroh, whereby Departmental Enquiry initiated against the .
petitioner, in the matter, has been dropped.
11. It is contended on behalf the petitioner that the omission and commission on the part of the respondents- Department are arbitrary and discriminatory and petitioner has wrongly been deprived of his further promotion and even he has not been considered for that despite having requisite eligibility qualification for being promoted as Sub Inspector alongwith his batch-mates, whereas petitioner was entitled for promotion, however, in any case, even if it is considered that he could not have been promoted during pendency of Departmental Enquiry, respondents were bound to follow the sealed-cover process in case of the petitioner and to open the sealed cover on conclusion of enquiry and to promote him from the date of promotion of his batch-mates, after order passed by competent authority to drop of Departmental Enquiry. Learned counsel for petitioner has further submitted that for passing of Upper Course, he was and at least now is entitled for promotion from the date of promotion of his batch-mates alongwith all consequential benefits.
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12. To substantiate claim of the petitioner, pronouncements of the Supreme Court in C.O. Arumugam & others v. the State of Tamil Nadu & others, 1990(1) SLR 288 .
(SC); Union of India v. K.V. Jankiraman, AIR 1991 SC 2010; Union of India & others v. Sangram Keshari Nayak, (2007) 6 SCC 704; Ramesh Kumar v. Union of India & others, (2015) 14 SCC 335; and judgment of Allahabad High Court in Diwakar Singh v. State of U.P. & others, 2013(6) SLR 511 (All.), have been referred.
13. From perusal of pleadings of parties and documents placed on record, it is evident that recording of adverse entries in ACR and rejection of representation and appeal against thereof by the concerned authorities is based on observations and recommendations of Dy.SP(HQ) with respect to investigation in case FIR No. 81/16 referred supra. The said observations and recommendations were for failure on the part of the Investigating Officer to trace accused-driver Hardeep Singh and for that integrity of petitioner was also recorded to be doubtful and he was reported to be an Officer not taking keen interest in work, rather misguiding the senior Officers.
14. It is noticeable that investigation of the aforesaid FIR, lateron, was handed over to SHO Aut, who, after conducting investigation for several months, was ::: Downloaded on - 23/02/2021 20:15:27 :::HCHP CWPOA No.1506 of 2019 ...10...
unable to trace accused Hardeep Singh and had submitted untraced report on 27.3.2018 in the Court, which has been accepted by the Magistrate on 8.8.2018, with observation .
that Court is satisfied for reasonable steps taken by police to apprehend the accused. On perusal of order dated 8.8.2018, it is evident that the reasons for filing untraced report assigned by SHO Aut are similar to the reasons assigned by the petitioner in his reports submitted to the Dy.SP(HQ). However, petitioner has been criticized and punished for that but no such comments and/or enquiry was initiated against the SHO, and now, the efforts made by the police to trace accused Hardeep Singh have also been found satisfactory by the Court. Therefore, the very basis, for which petitioner was reported of doubtful integrity and subjected to the Departmental Enquiry, leading to depriving him from further promotion, is non-existent. Reviewing Authority, Accepting Authority as well as Competent Authority, at the time of endorsing, affirming and justifying the recording of remarks in the ACR by the Reporting Officer have acted in mechanical manner and have assigned one and the same reason, i.e. poor quality investigation by the petitioner in case FIR No.81/16. The same result of the investigation, as concluded by SHO, has been approved by the concerned Officers and the same has ::: Downloaded on - 23/02/2021 20:15:27 :::HCHP CWPOA No.1506 of 2019 ...11...
also been approved by the Court. Therefore, Show Cause Notice dated 21.3.2017, Annexure A-1; Memo dated 11.10.2017, Annexure A-3; rejection order dated 2.1.2018, .
Annexure A-5; order in appeal dated 25.8.2018, Annexure A-7 passed on the basis of the same reason, deserve to be quashed, with direction to expunge the adverse remarks recorded in ACR of the petitioner for the period 1.4.2016 to 31.3.2017. Ordered accordingly.
15. Enquiry Officer, i.e. Superintendent of Police, Police Training College, Daroh, in his order dated 1.5.2018, whereby Departmental Enquiry against the petitioner had been dropped, has observed that petitioner has submitted the investigation report of the case with observation that whereabouts of the accused were not traceable and the case file was handed over to the then SHO SI Neel Chand , who has prepared the untraced report on 6.11.2016 and if the Supervisory Officer was not satisfied with the investigation then investigation was required to be assigned to other Investigating Officer whereas investigation of the case was assigned to the petitioner time and again but neither SHO nor Supervisory Officer had exercised the right course of action and after appreciation of record of Show Cause Notice dated 21.3.2017, Annexure A-1; Memo dated 11.10.20o17, Annexure A-3; rejection order dated 2.1.2018, ::: Downloaded on - 23/02/2021 20:15:27 :::HCHP CWPOA No.1506 of 2019 ...12...
Annexure A-5; order in appeal dated 25.8.2018, Annexure A-7 and reply of the petitioner he had dropped the Departmental Enquiry.
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16. In the aforesaid circumstances, not only reporting of adverse remarks in ACR and confirmation/ affirmation thereof by the authorities, but also denial of promotion to the petitioner on account thereof and for pendency of Departmental Enquiry is not sustainable. Needless to say that concerned authority has also failed to follow the proper procedure for consideration of petitioner to further promotion required to be followed in the given facts and the circumstances of the case and thus petitioner has been deprived from his fundamental right of consideration to promotion erroneously and, hence, petitioner is also entitled for promotion from the due date from which his batch-mates have been promoted as Sub Inspector after acquiring necessary eligibility by passing Upper Course, alongwith all consequential benefits including monetary benefits.
17. In view of above discussion, impugned Show Cause Notice dated 21.3.2019 (Annexure A-1), Memo dated 11.10.2017 (Annexure A-3), Orders dated 2.2.2018 and 25.8.2018 (Annexures A-5 & A-7) are quashed and the impugned adverse entries in the ACR of 2016-17 are ::: Downloaded on - 23/02/2021 20:15:27 :::HCHP CWPOA No.1506 of 2019 ...13...
expunged being without basis and the respondents are directed to consider the petitioner for promotion by ignoring this entry from the due date from which his batch-mates .
have been promoted as Sub Inspector, after acquiring necessary eligibility by passing Upper Course, alongwith all consequential benefits, including monetary benefits. Respondents are directed to ensure necessary compliance on or before 31.3.2021.
Petition stands allowed, in the aforesaid terms, alongwith pending application, if any.
( Vivek Singh Thakur )
February 23, 2021(sd) Judge.
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