Punjab-Haryana High Court
Azad Singh vs State Of Haryana And Others on 2 August, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.16680 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
*****
CWP No.16680 of 2013
DATE OF DECISION :2.8.2013
Azad Singh ...Petitioner
Versus
State of Haryana and others ...Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Dr. Suresh Kumar Redhu, Advocate for the petitioner.
1. To be referred to the Reporters or not? yes
2. Whether the judgment should be reported in the Digest? yes
RAJIV NARAIN RAINA, J.
The petitioner and one Head Constable Shamsher Singh were accused in a criminal case in FIR No.465 dated 12.9.2007 registered in Police Station Civil Lines, Karnal under Sections 7 and 13 of the Prevention of Corruption Act, 1988 read with Section 120-B IPC and were tried together before the Special Judge, Karnal in PCA case No.12 of 2008 instituted on 21.11.2008. The charge against them was of demand of bribe from complainant Pardeep Kumar inasmuch as they threatened registration of a case under the NDPS Act for possession of poppy husk stated to have been planted by one Kali in the shop of the complainant. The Special Judge, Karnal, by his judgment dated 26.7.2010 acquitted the petitioner and his fellow policeman after the complainant Pardeep Kumar-PW-6 and the eye witness Devi Dayal-PW-5 turned hostile and did not support the prosecution case. Both the witnesses resiled from their statements made by them to the police during the course of the investigation and gave a clean chit to the accused on deposition on oath in the witness box that the accused never Thakral Rajeev 2013.08.06 10:13 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.16680 of 2013 -2- demanded and accepted any money from Pardeep Kumar as illegal gratification for not registration of a criminal case. The Special Judge records in the order that he had no option but to pass an order of acquittal of the accused on prime witness turning hostile at the trial.
Side by side of the criminal trial, a departmental enquiry was initiated against both the petitioner and Head Constable Shamsher Singh. Charge-sheets were issued to them and after recording evidence the enquiry officer/Deputy Superintendent of Police, Assandh submitted his report in which the charges levelled were proven with respect to the subject matter of the criminal trial and the departmental proceedings. They were held guilty of abusing their office and tarnishing the image of the police in the eyes of the public. Pardeep Kumar-complainant appeared as a witness for the prosecution in the enquiry. He was cross examined. He resiled from his previous statement made before the police under Section 161 Cr PC which he could not to inculpate himself. The enquiry officer records thus:
"Thereafter he (Pardeep Kumar) filed a complaint in which he had named HC Shamsher Singh and Azad Singh on the basis of hearsay. Now he has ascertained that EHC Azad Singh who is sitting before him was not involved in beating, demanding and taking bribe.
The witness told on cross examination by me that on the day of incident those two persons who introduced themselves as police officials, out of one of them having white spot upon his forehead and right side of his neck whereas this EHC Azad Singh is having white spot on his lips and in front of his neck. He had got recorded the truth and neither he is changing his statement under pressure not in any greed."
The enquiry officer in his detailed enquiry report has inferred that the petitioner delinquent won over the complainant and the main witness in such manner as to have brought evidence in their favour sufficient for acquittal of the criminal charge. However, after appreciating the remaining prosecution and defence evidence the enquiry officer held that the delinquent demanded illegal gratification and took his share of the Thakral Rajeev 2013.08.06 10:13 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.16680 of 2013 -3- bribe money. The petitioner was held guilty of the charges levelled against him.
The enquiry report was supplied to the petitioner for his objections, if any, together with the show cause notice provisionally proposing punishment of dismissal from service. He availed that opportunity and submitted his written reply to the show cause notice and against the enquiry report.
The Superintendent of Police, Karnal, by his order dated 31.12.2008 found that there was sufficient evidence available on record of the departmental enquiry pointing to the guilt of the defaulter in demanding and taking illegal gratification in criminal conspiracy with HC Shamsher Singh. The petitioner was afforded opportunity of personal hearing. His length of service was considered together with his previous service record which in the opinion of the punishing authority of Constables would make the punishment of dismissal harsh and instead punished the petitioner with reversion from the rank of Exemptee Head Constable to Constable.
Aggrieved by the order of punishment, the petitioner carried an appeal to the Inspector General of Police, Rohtak Range, Rohtak. The appeal was filed on 18.11.2010. The Appellate Authority found the punishment too harsh and reduced it to stoppage of one future annual increment with permanent effect.
The Superintendent of Police, Karnal, conveyed adverse remarks to the petitioner for the period 17.6.2007 to 31.3.2008 recording his integrity as dishonest. These remarks were issued on 28.11.2008. For the period 1.4.2008 to 31.12.2008 the ACRs also went adverse against the petitioner with integrity-dishonest, worse than integrity doubtful. Against Thakral Rajeev 2013.08.06 10:13 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.16680 of 2013 -4- the adverse remarks the petitioner filed a representation before the Inspector General of Police, Rohtak Range, Rohtak. The representation was rejected vide order dated 31.10.2011.
The challenge in this petition is confined only to the adverse remarks recorded in the annual confidential reports of the petitioner for the aforesaid period. The punishment order inflicted in 2008 is not under challenge. It is, therefore, final.
Heard the learned counsel for the parties and perused the record.
The case set up by the petitioner before this Court is based on discrimination. The enquiry against the petitioner was held by the DSP, Karnal wherein he was found guilty. When the criminal case was launched at Karnal, the petitioner was arrested. However, Head Constable Shamsher Singh meanwhile had taken refuge on transfer to Rohtak. He was arrested much later than the petitioner while he posted at Rohtak. Therefore, the departmental enquiry in the case of HC Shamsher Singh was held by DSP, City Rohtak. The enquiry officer exonerated him by his report dated 31.1.2009. The Superintendent of Police, Rohtak filed the departmental enquiry against HC Shamsher Singh by order dated 25.11.2009. HC Shamsher Singh was certified Scott Free. The acquittal of both came on 26.7.2010. In a one page order, the Superintendent of Police, Rohtak without assigning any reason filed the enquiry even after recording a disagreement note differing on the findings recorded by the enquiry officer exonerating HC Shamsher Singh. The sum total of the order of the SP, Rohtak, dated 25.11.2009 makes interesting reading. It is, accordingly, reproduced:
Thakral Rajeev2013.08.06 10:13 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.16680 of 2013 -5-
"The enquiry officer recorded the statements of 10 prosecution witness and said official was given full opportunity to cross examine them. Consequent upon the transfer of HC Shamsher Singh No.272/RTK, the present departmental enquiry was received in this office and entrusted to Sh. Hawa Singh, Dy. SP/City Rohtak. The enquiry officer submitted his finding dated 31.01.09 exonerating the said official from the charge leveled him. I did not agree with the finding of the Enquiry officer on the following points:-
1. All the DWs have totally refused to give bribe to the said official and they also denied to recognize him. This indicates that he has mixed up with the complaint.
2. There is nothing on the departmental enquiry file which can prove that the complainant was nursing any grudge against him and wanted to implication him in a false case.
The said official was served with a show cause notice vide this office No.551/ST dated 16.10.2009 provisionally proposing the punishment effect. He submitted his written reply to the show cause notice on 26.10.09. I have carefully gone through the reply of the official. Keeping in view the facts on the departmental enquiry file and the explanation of the said official at the time of his personal hearing, the present departmental enquiry against HC Shamsher Singh No.72/RTK is hereby filed with immediate effect.
No.629/ST Dt. 25.11.09 Sd/-
Superintendent of Police,
Rohtak."
This has been made the launching pad by the petitioner for equal treatment alleging discrimination in the matter of imposition of punishment where the charge against both were the same.
I am not prepared to accept the argument of Dr. Suresh Kumar Redhu learned counsel appearing for the petitioner that his client has a case for interference by this Court in recording adverse ACRs for the period in question. There is in any case very little scope for interference with remarks recorded in annual confidential reports based on a punishment order which has become final.
The only issue which this Court is called upon to examine in this case is the effect of exoneration of Head Constable Shamsher Singh by a different enquiry officer in a different district. Justice demanded that there should normally have been common proceedings against both the petitioner and Head Constable Shamsher Singh before the same officer to avoid Thakral Rajeev 2013.08.06 10:13 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.16680 of 2013 -6- conflict of decisions. However, that was not to be.
I cannot say with any certainty as to what weighed in the mind of the Superintendent of Police, Rohtak in dealing with the case of Head Constable Shamsher Singh. The enquiry report in the case of Head Constable Shamsher Singh has not been produced on record for this Court to read it or benefit from and what led to the exoneration. But one thing is certain that the Superintendent of Police, Rohtak once recorded a dissent note and thereafter turned around and passed a cryptic non-speaking order (P-3) giving a clean chit to Head Constable Shamsher Singh, the text of which is reproduced above.
On the other hand, I have carefully read the detailed enquiry report in the case of the petitioner. It is well reasoned and on preponderance of probabilities, the conclusion reached are not assailable in writ jurisdiction to my mind.
To succeed in a challenge based on discrimination between two persons I think all parameters should be equal to return a reasoned finding that equals have been treated unequally for this Court to set about to undo the wrong. To my mind both the enquiries held at different places by different persons though in the same rank cannot be synchronized in such manner as to give benefit to the petitioner whose case now has to be treated, I am afraid, in isolation. Since the stigma of punishment based on the same subject matter or cause of action as in the criminal case, which has led to recording of integrity doubtful does not stand obliterated little can be done for the petitioner to come to his rescue. After all the specter of the finding of the Special Judge, Karnal, that the complainant Pardeep Kumar-PW-6 and eye witness Devi Dayal-PW-5 had turned hostile during the trial looms Thakral Rajeev 2013.08.06 10:13 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.16680 of 2013 -7- large over this Court. The order of the Special Judge, Karnal, applies to both the petitioner and the Head Constable Shamsher Singh equally. This aspect has not been touched upon in the administrative orders passed in the case of the latter. The petitioner has in any case got away lightly at the hands of the Appellate Authority when the reversion order to lower rank was reduced to major penalty of stoppage of one annual increment with cumulative effect. I am not prepared to concede anything more in favour of the petitioner. I am inclined to think that the petitioner has no case based on discrimination for this Court to quash the adverse remarks recorded for the period 1.4.2008 to 31.12.2008 of dishonesty. This Court cannot put a premium on proven misconduct involving moral turpitude of the worst kind. In any case, the petitioner remained quiet for over three and a half years before approaching this Court by which time even a civil suit would be barred by limitation from the accrual of the cause of action. To assuage the aspect of discrimination from the mind of the petitioner so that he does not leave this Court with any ill feeling, the Director General of Police, Haryana is directed to examine the case of Head Constable Shamsher Singh and as to whether from that order any injustice has resulted in its fall out on the petitioner. Beyond that this Court cannot interfere. If there is anything remiss nothing adverse should be done to Head Constable Shamsher Singh without hearing him. In case the Director General of Police, Haryana feels strongly enough to intercede then I am sure he will act in accordance with law. If he is convinced that the Superintendent of Police, Rohtak acted in aberration of law he may devise such methods as are available with him in the confines of his jurisdiction in order to do justice even if it means taking adverse action against the then Superintendent of Police, Rohtak if he acted Thakral Rajeev 2013.08.06 10:13 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.16680 of 2013 -8- on considerations other than law in giving a clean chit to Head Constable Shamsher Singh and to place the findings before this Court by the end of this year through a Civil Misc Application in this disposed matter for consideration of this Court after conveying its final decision to the petitioner who would have liberty to come back to this Court, if he still feels short-changed.
However, for the foregoing reasons, this writ fails and is dismissed.
2.8.2013 (RAJIV NARAIN RAINA)
rajeev JUDGE
Thakral Rajeev
2013.08.06 10:13
I attest to the accuracy and
integrity of this document
High Court Chandigarh