Punjab-Haryana High Court
H.C. Ram Kumar vs State Of Haryana And Others on 30 January, 2001
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT A.S. Gill, J.
1. The petitioner joined the Haryana Police as Constable on 10.8.1976. He opted for Executive Clerical Cadre and was appointed as Constable Executive Clerk w.e.f. August, 1983 by the Deputy Inspector General of Police, Ambala. He was promoted as Head Constable on 14.10.1983 and was transferred to the office of Superintendent of Police, Ambala as C.R.C. The petitioner claims that respondent No, 4 who was the then Superintendent of Police of the District was ill-disposed (owards him as he could not comply with latter's directions because he had refused to become a witness in the departmental inquiry against one Shakti Singh, ASI. The said A.S.I, was dismissed from service by respondent No. 4 but his dismissal was quashed subsequently by the Deputy Inspector General of Police, Ambala, respondent No. 3, being unjustified and illegal. On 9.12.1997, a case under the Excise Act was registered at Police Station, Baldev Na-gar, Ambala City on the written report of ASI Rajinder Singh in respect of his having intercepted Ashok Ku-mar and Pawan Kumar who were carrying boxes containing liquor on the night intervening 8/9.12.1997. However, S.I. Arun Kumar the then S.H.O. of Police Station Baldev Nagar gave a report that ASI Rajinder Singh had intentionally let off the petitioner although he was brought to the Police Station alongwith the accused Ashok Kumar and Pawan Kumar. Whereafter, respondent No. 4 suspended the petitioner, by order Annexure P-4, dated 10.12.1997 on the allegation that he was involved in the smuggling of 22 boxes of liquor and ASI Rajinder Singh and HC Virender Singh did not register a case against him. Respondent No. 4 appointed Smt. Kala Rama Chandran, IPS as an Inquiry Officer. The petitioner further claims that the order of suspension, Annexure P-4 was passed by respondent No. 4 who had no jurisdiction and the powers to suspend him are with the Deputy Inspector General of Police, Ambala. The petitioner was also involved in a criminal case and was arrested. Subsequently, respondent No. 4, by order dated 11.12.1997, Annexure P-5, changed the Inquiry Officer and appointed Sh. Jag-want Singh, D.S.P. Headquarters as an Inquiry Officer since the earlier Inquiry Officer, according to the petitioner, was not towing the line of respondent No. 4. Subsequently, respondent No. 4, by 'order dated 22.1.1998 - Annexure P-6, reinstated ASI Rajinder Singh and HC Varinder Singh whereas the petitioner was made to continue under suspension. The petitioner alongwilh ASI Rajinder Singh and HC Varinder Singh were served with summery of allegations. The Inquiry Officer, after framing of charge, recorded the evidence of 6 PWs. None of the PWs implicated the petitioner. The Inquiry Officer, however, on the hearsay evidence of S.L Arun Kumar, submitted his report against the petitioner whereas ASI Rajinder Singh and HC Varinder Singh were exonerated. Although the petitioner produced, in his defence, Constable Puran Chand and Constable Om Parkash who were members of the raiding party which had intercepted the accused who were allegedly carrying the boxes of liquor. Even Moharrir Constable Mohinder Singh who appeared as PW-3 categorically stated that the petitioner was not present alongwith the accused in the car which was intercepted nor he had ever informed HC Arun Kumar. The petitioner claims that the report of the Inquiry Officer against him was on the basis of no evidence.
2. Respondent No. 4, on the basis of the report of the Inquiry Officer, without application of mind and being prejudiced against him, issued a show cause notice for dismissal of the petitioner. The petitioner, in his reply, Annexure P-9, categorically submitted that respondent No. 4 had no jurisdiction in the matter since the petitioner was appointed by the order of Deputy Inspector General of Police, Ambala under the Punjab Police Rules (hereinafter to be referred as "the Rules") and respondent No, 4 could not proceed in the matter against him. However, on 17.4.1998, respondent No. 4 passed an order, Annexure P-10, dismissing the petitioner from service incomplete violation of rule 16.2 of the Rules. The petitioner preferred statutory appeal before the Deputy Inspector General of Police. However, the same was dismissed arbitrarily. The petitioner submitted revision petition to the Director General of Police, Haryana-respondent No. 2 against the orders passed by respondent No. 4 as well as Deputy Inspector General of Police, respondent No. 3. Respondent No. 2-Director General of Police, Haryana passed order dated 6.11.1998, Annexure P-13 setting aside the orders passed by respondent No. 4 as well as by the appellate Authority and ordered the reinstatement of the petitioner and remanded the matter again to the Deputy Inspector General of Police, respondent No. 3 for passing fresh orders in accordance with law. Respondent No. 3, by his order dated 8.1.1999, Annexure P-14, disagreed with the findings of the Inquiry Officer and directed that the inquiry against the petitioner be filed. Subsequently, by an order dated 1.4.1999, Annexure P-15, the then Director General of Police Shri S.K. Sethi, IPS issued show cause notice to the petitioner for his dismissal from service acting under rule 16.28 of the Rules without passing any order of disagreement with the order passed by the Deputy Inspector General of Police, respondent No. 3 as the petitioner already stood exonerated of the charge. The petitioner submitted his reply, Annexure P-16 but before any order could be passed by the then Director General of Police, he was transfered. His successor Shri A.S. Bhatolia, IPS, without issuing any show cause notice to the petitioner and without giving him any opportunity of hearing as required under rule 16.24 of the Rules, passed the dismissal order of the petitioner dated 13.8.1999, Annexure P-17. The petitioner claims that the impugned order, Annexure P-17 is in complete violation of rules 16.24 and 16.2(1) of the Rules beside being illegal, arbitrary, discriminatory, unconstitutional and violative of Articles 14 and 16 of the Constitution. The petitioner craves for the issuance of a writ of certiorari for quashing the impugned order, Annexure P-17 and for his reinstatement in service.
3. In the written statement filed on behalf of respondents No. 1 to 3 and himself by respondent No. 4 the claim of the petitioner is contested. It is claimed that although the name of the petitioner did not figure in the F.I.R., yet the SHO/SI-Arun Kumar, after duly verifying the relevant facts, named the petitioner as an accomplice of the accused persons. Respondent No. 4 denied if he was prejudiced against the petitioner or if he had pressurised him to become a witness against ASI Shakti Singh. It is further claimed that the inquiry report is based on the evidence of SI Arun Kumar along but he had verified the actual facts and as such the allegations against the petitioner were duly proved. Respondent No. 4, however, considered that in the same inquiry ASI Rajinder Singh and HC Varinder Singh were exonerated. However, it is stated that their case was distinguishable from the case of the petitioner. Respondent No. 4 also considered that he was under the bona fide impression that he was the appointing authority and had issued the suspension order and initiated the inquiry against the petitioner as he was competent to do so; He claimed that since the punishment order was passed by the Director General of Police, Haryana-respondent No. 2, his stand was vin-dicted and his action was duly approved. He further claimed that he passed the order of dismissal of the petitioner under the bona fide belief that he was the Appointing Authority. It is further claimed that a perusal of the record showed that while directing the filing of the inquiry file by the Deputy General of Police, Am-bala, he had not taken into consideration the evidence on record which clearly showed the involvement of the petitioner. However, it is admitted in para 21 of the written statement that no personal hearing was granted to the petitioner. The order of dismissal, Annexure P-17, on the other hand, has been claimed to be in accordance with law and justified.
Heard learned Counsel for the parties.
4. It is well settled by now that the orders passed by the executive authorities on the domestic enquiries are of quasi judicial in nature. It is so because the competent authority, after evaluating and assessing the evidence led against the delinquent official, is to decide if the charges against the delinquent official are proved or not. The Executive Authorities are required to have a judicious approach in respect of domestic enquiries since the orders have civil consequences affecting the service of a Government employee. The judicial review of such orders, no doubt, is limited to the extent only to see if the delinquent has been afforded reasonable opportunity to defend himself in the departmental enquiry against him. The court is not to sit in appeal against the findings of the Inquiry Officer or to assess the sufficiency or otherwise of the evidence. However, where a case is made out that the findings of the enquiry officer are based on no evidence, the Court can go into such a plea and in the interest of justice to see if the action against such an employee is justified under the law. The facts of the case which have been elaborated above precisely show that a case under the Excise Act was registered against Ashok Kumar and Pawan Kumar on the information lodged by ASI Rajinder Singh by having intercepted the two accused carrying boxes of liquor on the night intervening 8/9.12.1997. However, subsequently, SI Arun Kumar on the information received by him from Moharrir Constable Mohinder Singh made a report that ASI Ra-jinder Singh and HC Varmder Singh who were heading the naka party had wrongly let off the petitioner who was found travelling in the same car alongwith the accused when they were intercepted by ASI Rajinder Singh. In the inquiry six witnesses in all were examined. Moharrir Constable Mohinder Singh denied his having informed SI Arun Kumar that ASI Rajinder Singh wrongly let off the petitioner. The other two members of the naka party i.e. Constable Puran Chand and Constable Om Parkash also denied before the Inquiry Officer if the petitioner was accompanying the accused persons. The other two members of the naka party i.e. ASI Rajinder Singh and HC Varinder Singh were facing the same inquiry. Evidentiary value of SI Arun Kumar who made the report allegedly on the basis of information from Moharrir Constable Mohinder Singh was nil since Mohinder Singh had denied if he made any statement to S.I. Arun Kumar. Thus, there was no evidence much less legal to hold that the charge was established against the petitioner. Surprisingly, ASI Rajinder Singh and HC Varinder Singh who were accused of having let off the petitioner and not naming him in the FIR were exonerated in the inquiry report obviously by holding that they had not let off the petitioner and had intentionally not named him in the FIR which could be only if the petitioner was not travelling alongwith the accused persons and wasnot found there by the naka party headed by ASI Rajinder Singh.
5. The impugned order, Annexure P-17, is palpably against the specific rule 16.28 of the Rules which reads as under :-
"16.28. Powers to review proceedings. - (1) The Inspector General, a Deputy Inspector General, and a Superintendent of Police may call for the records of awards made by their subordinates and confirm, enhance, modify or annul the same, or make further investigation or direct such to be made before passing orders.
(2) If an award of dismissal is annulled, the officer annulling it shall state whether it is to be regarded as suspension followed by reinstatement, or not. The order should also state whether service previous to dismissal should count for pension or not.
(3) In all cases in which officers propose to enhance an award they shall, before passing final orders, give the defaulter concerned an opportunity of showing cause, either personally or in writing, why his punishment should not be enhanced."
6. Sub-rule (3) of rule 16.28 above is mandatory in nature and requires the affording of an opportunity of showing cause either personally or in writing against the proposed action. Admittedly, in this case before the impugned order, Annexure P-17 was passed, respondent No. 2 did not issue any show cause notice much less affording the petitioner any opportunity of personal hearing which is not only against the rule, reproduced above, but also is against the principles of natural justice. The opportunity of hearing i.e. the rule of audi alteram partem is facet of natural justice and is the requirement of Article 14 of the Constitution. In the absence of complying with the rules of natural justice, the action per se becomes arbitrary. The Apex Court in Basidep Tiwary v. Sido Kanhu University anil others, JT 1998(6) 464 held as under :-
"The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of state action governed by Article 14. It has come to be established, as a further corollary, that he audi alteram partem facet of natural justice is also a requirement of Article 14, for natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the services of an employee is antithesis to fair, just and reason able treatment."
7. Admittedly, the departmental proceedings were initiated against the petitioner by the Superintendent of Police, respondent No. 4 who was not the competent authority being not the appointing authority of the petitioner. He also passed the order of suspension as well as the order of dismissal. This being so, the very initiation of the proceedings was void ab initio. It was the same order of dismissal dated 17,4.1998, Annexure P-10 which was challenged in appeal by the petitioner and was confirmed by the Deputy Inspector Genera) of Police while dismissing the appeal of the petitioner on 1.7.1998. However, the then Director General of Police, Haryana quashed the dismissal order being a case of no evidence against the petitioner but not considering if the order was also without jurisdiction and the matter was remanded back which was against considered by the Deputy Inspector General of Police, respondent No. 3 and he did not agree with the finding of the Inquiry Officer by order dated 8.1.1999, Annexure P-14. However, the then Director General of Police, Haryana-Sh. S.K. Set, IPS sito motu acting under rule 16.28 of the Rules issued show cause notice of dismissal to the petitioner but could not pass the final order as he was transferred. The impugned order was passed by his successor. All this exercise indicates that the disciplinary proceedings as well as the order of dismissal initially passed by respondent No. 4 continued to be considered by the higher authorities at different levels without quashing the same and directing the initiation of proceedings and passing of orders by the competent authorities i.e. the Deputy Inspector General of Police who, under the Rules, was competent to initiate the proceeding against the petitioner and pass the consequential orders on the same. The order of dismissal of the petitioner as such suffers from inherent defect of want of jurisdiction and cannot be sustained and is not tenable under the law. Besides, it is also to be noted that in response to the show cause notice the petitioner submitted his reply and specifically requested for personal hearing. However, without caring for the plea, the impugned order was passed by respondent No. 2 although acting under rule 16.28 of the Punjab Police Rules but ignoring the same by which he was required to have afforded an opportunity of personal hearing even without asking of the petitioner.
8. In the light of the observations made above, this petition is allowed. The impugned order dated 13.8.1999, Annexure P-17, dismissing the services of the petitioner is quashed with all the consequential benefits as if the impugned order was never passed.
9. Petition allowed.