Punjab-Haryana High Court
Constable Pale Ram vs State Of Haryana And Others on 14 December, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 24413 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 24413 of 2012
Date of Decision : December 14, 2012
Constable Pale Ram
.... PETITIONER
Vs.
State of Haryana and others
..... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present : Mr. S.N.Yadav, Advocate,
for the petitioner.
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioner has approached this Court praying for quashing of the order dated 21.12.2006 (Annexure P-5), vide which the Senior Superintendent of Police, Government Railways Police, Haryana- respondent No. 4 has imposed a punishment of stoppage of three annual increments with permanent effect, order dated 22.05.2007 (Annexure P-7), vide which the appeal preferred by the petitioner stands dismissed by the Inspector General of Police, Railways and Technical Services, Haryana-respondent No. 3 and order dated CWP No. 24413 of 2012 2 02.06.2008 (Annexure P-8) passed by the Director General of Police, Haryana-respondent No. 2 rejecting the revision petition of the petitioner.
It is the contention of the counsel for the petitioner that the punishment imposed upon the petitioner could not be sustained in the light of the fact that the petitioner stands exonerated in the departmental enquiry held against him. The dissenting note served upon the petitioner is based upon an enquiry where there is no evidence found against the petitioner and since there is no evidence in the enquiry, which was held against the petitioner, the imposition of the punishment upon the petitioner by respondent No. 4 is not in accordance with law as the enquiry report itself cannot be said to be a document which would entitle the punishing authority to impose such a punishment.
The next contention, which has been raised by the counsel for the petitioner, is that as per Rule 16.3 of the Punjab Police Rules, 1934 (hereinafter referred to as '1934 Rules'), as applicable to the State of Haryana, where, in a criminal case initiated against the employee on the same facts leads to acquittal, no punishment can be imposed by the department for the same reason and as a matter of fact, no departmental proceedings can be initiated for the same. Reliance has also been placed upon Rule 16.38 of the 1934 Rules to contend that the departmental proceedings initiated against the petitioner cannot sustain as the CWP No. 24413 of 2012 3 Superintendent of Police, prior to proceeding against the petitioner, did not obtain the concurrence of the District Magistrate, which is mandated under this Rule. On this basis, counsel for the petitioner has assailed the impugned orders.
I have considered the submissions made by the counsel for the petitioner and with his assistance, have gone through the records of the case.
A perusal of the impugned order dated 21.12.2006 (Annexure P-5) and when read in consonance with the enquiry report, the findings recorded therein cannot be said to be one where the enquiry is based upon no evidence although it has resulted in exoneration of the petitioner. The punishing authority has, in detail, referred to the evidence, which has been led by the department against the petitioner wherein the witnesses, who had appeared for the department, had supported the case of the department on all aspects. Not only the official witnesses i.e. those officials who had registered the case against the delinquent official but the other witnesses in whose presence the incident had taken place, also supported the case of the department. The detailed discussion in this regard finds mention in the order passed by the punishing authority, the relevant part of which reads as follows:-
" So, I carefully studied and understood the statements of PWs, statement of defence witnesses, conclusion report submitted by inquiry officer, written reply CWP No. 24413 of 2012 4 submitted by defaulter, and all documents in the inquiry and reached the conclusion that the allegations levelled against both the constables are not baseless and meaningless. This is true that in the night of 20.01.2004, both the constables snatched ` 850/- from the passenger Sh. Kashinath Jha sitting in the waiting room of Railway Station, Ambala City. The confirmation of this fact, is submitted by PW No. 5 Sub Inspector Avtar Krishan, the then Incharge, CIA, Govt. Railway Police, Ambala Cantt in his statement that he was presented in CIA Railway Station, Ambala City when Kashinath Jha recorded his statement that the constables of police had beat him and snatched ` 4150/-. After that Kashi Nath Jha stated in his supplementary statement that he told wrongly about snatching ` 4150/- but both the constables snatched ` 850/- from him. On the basis of statement of Kashinath Jha, the case was registered against both in the police station, Ambala Cantt. He remained with Inspector Satpal, the then SHO, Govt. Railway Police, Ambala Cantt in all investigation. Due to the involvement of Constable Pale Ram, he was arrested on 24.01.2004 by Inspector Satpal and on the demarcation of Pala Ram, 4 notes of 100-100 were recovered from the personal box of barik Chowki, Railway, Ambala City in the above case and chit was also CWP No. 24413 of 2012 5 recovered on which, the name of Kashi Nath Jha and date was written. Pala Ram also admitted in his statement that rest of ` 450/- is also in the custody of Constable Bahadur Singh. On 19.02.2004, by taking one day remand from the Court, Constable Bahadur Singh No. 950/GRP was arrested and in the trunk which was in your resident barik, 4 notes of 100-100 and one note of ` 50/- and one certificate of Kashi Nath on which the photograph was attached, recovered which was taken in possession custody by the police. So, it is clear from the recovery of ` 850/- on the demarcation of both defaulter and certificate along with photo of Kashinath Jha that at the night of 20.01.2004, both of them beat Sh. Kashinath Jha and snatched his money. If Kashinath denied to identify them during his statement, then it may be assued that he is doing due to any pressure. The confirmation of the statements given by Sub Inspector Avatar Krishan in the above case, is done by PW No. 6 Inspector Satpal in his statement that on that day, he was working as SHO in the Govt. Railway Police, Ambala Cantt and investigation of this case is done by him. PW-4 Sh. Jaspal s/o Sita Ram Cast Pandit R/O Village Sanghu, Chtha, Tehsil and District Kapurthala, Kashinath Jha was working with him also confirmed in his statement that Kashinath told him that at CWP No. 24413 of 2012 6 the night of 20/21/01.2004 constables of Police had snatched ` 850/- from him. So, it cannot be said that snatching of ` 850/- from Kashinath on 20/21/01.2004 had not been done by both these constables. So, it is confirmed from the documents, enquiry and statement that at the night of 20.01.2004, during their posting at Govt. Railway Police, Ambala City, Constable Bahadur Singh No. 950/GRP and Constable Pala Ram No. 27 GRP snatched ` 850/- from Kashi Nath Jha."
In the light of the above, it cannot be said that the present is a case where there is no evidence against the petitioner which has come forth in the enquiry proceedings and, therefore, the findings recorded by the punishing authority are not just and reasonable or based on no evidence. The contention, thus, of the counsel for the petitioner that present is a case of no evidence in the departmental enquiry cannot be accepted.
The plea taken by the counsel for the petitioner that as per Rule 16.3 of the 1934 Rules, as applicable to the State of Haryana, would vitiate the departmental proceedings initiated against him and would result in the annulment of the punishment, which has been imposed upon him, again cannot be accepted.
Rule 16.3 of the said Rules reads as follows:-
16.3 Action following on a judicial acquittal (1) When a Police Officer has been tried and acquitted CWP No. 24413 of 2012 7 by a criminal court he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not, unless:-
(a) the criminal charge has failed on technical grounds; or
(b) in the opinion of the court or of the Superintendent of Police, the prosecution witnesses have been won over or
(c) the Court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned or
(d) the evidence cited in the criminal case discloses facts unconnected with the charge before the court which justify departmental proceedings on a different charge; or
(e) additional evidence admissible under rule 16.25 (1) in a departmental proceedings is available."
A perusal of the same would show that it is in a situation where the acquittal in a criminal Court has resulted prior to the initiation of the departmental proceedings and thereafter, it is decided CWP No. 24413 of 2012 8 to proceed against the employee that the said Rule would be applicable. In the present case, the departmental enquiry was initiated against him by issuance of the charge-sheet dated 02.02.2004 which resulted in the imposition of the punishment of stoppage of three increments with permanent effect vide order dated 21.12.2006 (Annexure P-5) whereas the acquittal in the present case in the criminal trial is dated 10.06.2009 (Annexure P-9). The Rule thus, cannot be pressed into service by the petitioner for vitiating the departmental proceedings initiated and held against him which has resulted in imposition of punishment, which has ultimately been upheld by the appellate authority and the revisional authority.
Reliance upon Rule 16.38 of the 1934 Rules again for challenging the impugned order is misplaced. Rule 16.38 of the 1934 Rules reads as follows:-
" Rule 16.38
a) Criminal offences by police officers and strictures
by courts-procedure regarding-
1) Where a preliminary enquiry of investigation into a
complaint alleging the commission by an enrolled police officer of a criminal offence in connection with his official relations with the public, establishes a prima facie case, a judicial prosecution shall normally follow. Where, however, the Superintendent of Police proposes to proceed in the case departmentally, the concurrence of the District Magistrate shall be obtained."
CWP No. 24413 of 2012 9This Rule again would not be applicable to the case is hand for the reason that the said Rule comes into operation in case the punishing authority i.e. the Superintendent of Police instead of proceeding against the delinquent employee for judicial prosecution decides not to proceed for the same purpose and instead decides to take action departmentally. It is in this situation that the concurrence of the District Magistrate has to be obtained. Present is a case where judicial prosecution had followed the registration of an FIR against the petitioner. Apart from proceeding against the petitioner on the criminal side in the judicial proceedings, the Superintendent of Police has proceeded against him departmentally as well. In such a situation, the concurrence of the District Magistrate is not mandated under this Rule.
In view of the above, there is no merit in the present writ petition and, therefore, the challenge to the impugned orders cannot sustain.
It would not be out of way to mention here that there is an inordinate delay on the part of the petitioner in approaching this Court while impugning the orders of punishment imposed upon him. The only explanation, which has been put forth by the counsel for the petitioner, is that he had again approached the department after the acquittal of the petitioner in a criminal case on 10.06.2009 by filing mercy appeal on 12.07.2010, which was rejected on 16.11.2010. This explanation would not be acceptable for the reason that the said CWP No. 24413 of 2012 10 mercy appeal is neither provided under the Statute nor is it available under the provisions applicable which would mandate such a remedy to be available to the petitioner. In any case, the petitioner, after the rejection of the mercy appeal also vide order dated 16.11.2010, has now approached this Court after more than 2 years, which again is a good ground for not entertaining the present writ petition.
The writ petition, therefore, stands dismissed.
(AUGUSTINE GEORGE MASIH )
December 14, 2012 JUDGE
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