Punjab-Haryana High Court
Constable Surinder Singh No.280/Cpf vs The State Of Haryana And Others on 26 April, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
C.W.P. NO.14782 OF 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
*****
C.W.P. NO.14782 OF 2011
DATE OF DECISION :26.04.2012
Constable Surinder Singh No.280/CPF ...Petitioner
Versus
The State of Haryana and others ...Respondent
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.
Present : Mr. S.N.Yadav, Advocate,
for the petitioner.
Mr. Sunil Nehra, Sr. DAG, Haryana,
for the respondents.
AUGUSTINE GEORGE MASIH, J.
Challenge in this writ petition is to the order dated 15.12.2010 (Annexure P-7) passed by the Inspector General of Police, Railways and Technical Services, Haryana-Respondent No.3 under Rule 16.28 of the Punjab Police Rules, 1934 (hereinafter referred to as 'the 1934 Rules') disagreeing with the order of the punishing authority exonerating the petitioner in the departmental inquiry held against him and imposing a punishment of stoppage of two annual increments with permanent effect. Challenge is also to the order dated 29.07.2011 (Annexure P-11) passed by the Director General of Police, Haryana-Respondent No.2 under the 1934 Rules dismissing the review petition preferred by the petitioner against the order of punishment and enhancing the punishment of the petitioner to dismissal from service.
Briefly the facts are that the petitioner was enrolled as a Constable in Commando Police Force, Haryana on 01.06.2003. He was awarded 15 commendations certificates with or without cash reward during the short span of service. No adverse entry has been made C.W.P. NO.14782 OF 2011 -2- against the petitioner.
While he was serving the police department, one Bishan Singh son of Gopi Ram, who was native of the village of the petitioner and had some grudge against the petitioner and his family filed a complaint to the Superintendent of Police, CID Madhuban against the petitioner that the actual date of birth of the petitioner is 15.01.1980 and this was reflected in his Middle Standard Examination Certificate issued by the Board of School Education, Haryana, Bhiwani in the year 1995 whereas in the Senior Secondary School Certificate of the National Open School, New Delhi, the date of birth of the petitioner has been shown as 15.01.1982. On the basis of this complaint, FIR No.134 dated 01.10.2005 under Section 465, 467, 471 and 120-B IPC was registered at Police Station Bhattu Kalan, Fatehabad against the petitioner.
Petitioner was placed under suspension vide order dated 17.11.2005 and a regular departmental inquiry was initiated against him. Ravinder Kumar, Commando, Newal was appointed as Inquiry Officer. After holding the inquiry in which 11 prosecution witnesses and 05 defence witnesses were examined, a report was submitted by the Inquiry Officer wherein a finding was returned that the allegations/charges of getting Government job by showing age two years short was not proved. It was also stated that the petitioner himself had not tried to conceal the real date of birth mentioned in education document. The punishing authority i.e. the Superintendent of Police, Commando, Newal Karnal, Haryana-Respondent No.4 agreed with the report of the Inquiry Officer and vide order dated 29.01.2007 (Annexure P-2) concluded that it is the father of the petitioner who had given an affidavit at the time of filling up the form of National Open School matriculation examination wherein his date of birth was shown as 15.01.1982. This was not done by the C.W.P. NO.14782 OF 2011 -3- petitioner nor has he obtained any benefit out of the registration of his date of birth as 15.01.1982 at the time of his recruitment in Commando Police Force which took place in the year 2003 whereas the petitioner had passed matriculation examination in the year 1997. Petitioner had, thus, not changed his date of birth. Suspension period of the petitioner, in pursuance to the order of his exoneration of the charges in the departmental inquiry was passed on 13.02.2007 regularising the same.
In the criminal case, which was registered against the petitioner, he was discharged by the Judicial Magistrate First Class, Fatehabad vide order dated 05.05.2007 on the ground that the father of the petitioner, namely, Om Prakash, who had died during the pendency of the criminal proceedings, had given wrong facts when he filed his affidavit dated 31.01.1998 while filling up the form for matriculation examination of National Open School in which the date of birth of the petitioner has been shown as 15.01.1982. Petitioner had not derived any benefit while joining police force and affidavit which was given by the father of the petitioner was only with an intention to obtain education and cannot be said to be with an intention to join the police force which selection and appointment took place after about five years. Petitioner had not forged certificate of National Open School or any other document for showing his date of birth as 15.01.1982 and wrong, if any, which might have been committed was by his father deceased Om Prakash for which he cannot he held liable, accordingly the petitioner was discharged.
A show cause notice dated 14.10.2010 (Annexure P-5) was received by the petitioner which was issued by the Inspector General of Police, Railways and Technical Services, Haryana, wherein exercising the powers under Rule 16.28 (1) of the 1934 Rules Volume II and not agreeing with the punishing authority and provisionally forming a view C.W.P. NO.14782 OF 2011 -4- that misconduct had been committed by the petitioner as the Middle Standard Examination Certificate in which the actual date of birth of the petitioner has been mentioned as 15.01.1980 was concealed by the petitioner for admission in National Open School, New Delhi and new date of birth i.e. 15.01.1982 had been shown and that why a penalty of stoppage of five annual increments with permanent effect should not be inflicted upon him. Reply was called for within 15 days of the receipt of the said notice to which the petitioner filed a detailed response taking the plea that at the time of admission in the National Open School, New Delhi, his father Om Prakash, had mentioned his date of birth as 15.01.1982 in support of which his father submitted an affidavit dated 31.08.1998, on the basis of which the date of birth was entered in the Senior Secondary School Examination Certificate. He further stated that at that time he was minor and was not aware of his date of birth. No undue benefit had been taken by him by such entry in the Senior Secondary School Examination Certificate nor he derived any benefit while joining the Police Force which he joined after about five years. This plea of the petitioner was not accepted by the Inspector General of Police, who vide order dated 15.12.2010 (Annexure P-7) imposed a punishment of stoppage of two increments with permanent effect.
Against this order petitioner preferred an appeal to the Director General of Police, Haryana. Instead of accepting the appeal of the petitioner, a show cause notice dated 09.06.2011 (Annexure P-9) was received by the petitioner from the Director General of Police, wherein the Director General of Police, Haryana was of the opinion that the petitioner had used false/fake documents of date of birth for obtaining Government job and he had been let off very lightly by the Inspector General of Police by awarding punishment of stoppage of two annual increments with C.W.P. NO.14782 OF 2011 -5- permanent effect which is not commensurate with the misconduct committed by the petitioner and therefore, he was of the tentative view that why penalty of dismissal from Government service should not be imposed upon the petitioner. Petitioner was called upon to respond within a period of 15 days from the date of receipt of this communication.
Petitioner filed a reply to the show cause notice. The reply submitted by the petitioner was found to be devoid of merit and in exercise of the powers under the 1934 Rules, the Director General of Police enhanced the punishment of stoppage of two annual increments with permanent effect awarded by the Inspector General of Police, to that of dismissal from service vide order dated 29.07.2011 (Annexure P-11). It is, at this stage, that the petitioner has approached this Court by filing the present writ petition assailing orders dated 15.12.2010 (Annexure P-
7) and 29.07.2011 (Annexure P-11) on the ground that the said orders are in violation of the statutory rules governing the service and that the punishment imposed by the petitioner is based on no evidence and the misconduct attributed to the petitioner was never committed by the petitioner for which the punishment has been imposed illegally vide the impugned orders on him.
Counsel for the petitioner contends that once a departmental inquiry has been held against the petitioner in which on the basis of the evidence led by the department and the delinquent employee, findings have been returned that the charge against the petitioner has not been proved and the punishing authority accepting the same, the revisional authority cannot, without spelling out reasons for not agreeing with the inquiry report and the findings recorded by the punishing authority, impose a punishment on a delinquent employee. He further contends that similarly on an appeal/representation preferred by the delinquent C.W.P. NO.14782 OF 2011 -6- employee, the reviewing authority cannot further enhance it by basing its order on the order passed by the revisional authority, which is based on no evidence, to further enhance it and that too that of dismissal from service. The punishment imposed upon the petitioner is disproportionate to the misconduct attributed to him. He contends that the orders passed by the Inspector General of Police and the Director General of Police against the petitioner are based on total non-application of mind as at the time of recording of date of birth either at the Middle Standard School level or at the Senior Secondary School level petitioner was not involved at all. It is not the case of the respondents that the form which was filled for seeking admission in the National Open School, New Delhi was filled by the petitioner nor is it the case of the respondents that he had in any manner tampered with records or had been involved in creation of the fake/false certificate of the Senior Secondary School Examination. As has been admitted by the respondents the forms for the Middle Standard School Examination and the Senior Secondary School Examination were filled by his father. The affidavit in support of the date of birth which was mentioned in the certificate of the Senior Secondary School Examination was that of his father and therefore, the petitioner cannot be held liable. Further the petitioner had submitted his Senior Secondary School Examination certificate at the time of his entry into police service. No benefit has been derived by the petitioner which could be owing to the effect of the change of date of birth and in any case this was much prior to his seeking employment in the Police Department. There is no connection between the entry of date of birth and his obtaining employment in the Police Department which could be made the basis for imposing punishment upon the petitioner. He on this basis prays that the impugned orders deserve to be quashed and this writ petition be allowed. C.W.P. NO.14782 OF 2011 -7-
On the other hand, counsel for the respondents submits that the petitioner used false/fake documents of date of birth for obtaining Government job. Petitioner had concealed his correct date of birth while he obtained admission in the National Open School, New Delhi and there got a new date of birth entered which has been reflected in the Senior Secondary School Examination certificate while in the Middle Standard School Examination certificate his date of birth is 15.01.1980. The petitioner, thus, was not fit to be retained in police service as he intentionally had mislead the department and therefore, has been rightly imposed punishment by the authorities. He, however, could not dispute the fact that the entry in the Senior Secondary School Examination certificate, the date of birth i.e. 15.01.1982 was entered on the basis of an affidavit dated 31.08.1998 submitted by the father of the petitioner. He also could not dispute the fact that the petitioner was not in any manner involved in the preparation of the documents as regards the entry of his date of birth in the Senior Secondary School Examination certificate. He, however, submits that the petitioner at the time of filling up of form for verification of antecedent, age etc. while he was enrolled as a Constable in Commando Police Force, Haryana in the year 2003, was a major and had intentionally submitted wrong information and documents by concealing his correct date of birth.
I have heard counsel for the parties and gone through the records of the case.
There being no dispute between the parties as regards the facts are concerned, I proceed to decide the issue involved in this Case. The only question which requires to be answered is whether the punishment imposed upon the petitioner is in accordance with law or the same is based on misconception and no evidence?
C.W.P. NO.14782 OF 2011 -8-
Perusal of the record and the show cause notice dated 14.10.2010 issued by the Inspector General of Police would show that he had not agreed with the order of the punishing authority exonerating the petitioner, on the ground that the Middle Standard School Examination certificate mentioned the date of birth of the petitioner as 15.01.1980 which was concealed by the petitioner for seeking admission in National Open School, New Delhi and new date of birth i.e. 15.01.1982 has been shown in the Senior Secondary School Examination Certificate and in the notice dated 09.06.2011 the Director General of Police had proceeded by saying that the petitioner used false/fake documents of date of birth for obtaining Government job. Both these reasons are totally misplaced and there is no evidence on the record to substantiate the same either in the inquiry proceedings or in the written statement which has been filed in Court by the respondents. The Inspector General of Police has proceeded on the assumption that the petitioner had concealed his actual date of birth while taking admission in the National Open School, New Delhi and had entered a new date of birth i.e. 15.01.1982 instead of 15.01.1980 which finds mentioned in the Middle Standard School Examination certificate. As has been pleaded and not disputed by the respondents that the form for seeking admission in the National Open School, New Delhi was filled by the father of the petitioner late Shri Om Prakash. In support of the date of birth as 15.01.1982, Shri Om Prakash had given his affidavit dated 31.08.1998. If that be so, the basis for the show cause notice and the proceedings initiated on the wrong assumption by the Inspector General of Police for disagreeing with the findings recorded by the inquiry officer which was accepted by the punishing authority whereby the petitioner was exonerated on the basis of the inquiry report, itself has no legs to stand on. The Director General of Police in the show cause C.W.P. NO.14782 OF 2011 -9- notice had gone a step further by adding that the petitioner used false/fake document of date of birth for obtaining Government job. Here again it is not disputed by the respondents that the certificate of the Senior Secondary School Examination is not a false/fake document. As regards the entry of date of birth in the said certificate is concerned, the same was not got entered by the petitioner and therefore, he cannot be held responsible for the same. It is admitted by the respondents that the petitioner had not derived any benefit while seeking appointment in the Police Department because of the recording of his date of birth as 15.01.1982 as the counsel for the respondents has conceded at the time of arguments that even if the date of birth of the petitioner is taken as 15.01.1980 he would have been eligible for appointment to the post of Constable in the year 2003. The foundation for proceedings against the petitioner by respondent Nos.2 and 3 through their show cause notices having been demolished the orders standing on that foundation cannot stand. Even otherwise these orders being based on no evidence cannot be sustained.
In the criminal case which had been initiated against the petitioner, he was discharged by the competent Court as there is no evidence against the petitioner. Allegations, if any, were against Shri Om Prakash, father of the petitioner, who on the basis of an affidavit had got entered the date of birth of the petitioner in the National Open School at the time of his admission. Petitioner cannot be held liable for any wrong committed by his father, deceased Om Prakash, when nothing had come on record which would show his connivence or involvement in getting his date of birth entered in the National Open School, New Delhi as 15.01.1982 instead of 15.01.1980. Thus, neither any mens rea nor any overt act can be attributed to the petitioner on the basis of which it could C.W.P. NO.14782 OF 2011 -10- be inferred that petitioner had done directly or indirectly anything to obtain job in police department by playing any fraud or concealing any information or giving any wrong information at the time of submitting the application for the appointment in police department.
In view of the above, the present writ petition is allowed. Impugned orders dated 15.12.2010 (Annexure P-7) and 29.07.2011 (Annexure P-11) are hereby quashed. Petitioner is held entitled to all consequential benefits which may be granted/released to the petitioner within a period of one month from the date of receipt of the certified copy of the order.
26.04.2012 (AUGUSTINE GEORGE MASIH) adhikari JUDGE