Punjab-Haryana High Court
Satvir Singh vs State Of Haryana And Others on 3 April, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
C.W.P.No.23461 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
C.W.P.No.23461 of 2011
Date of Decision:- 03.04.2012
Satvir Singh ....Petitioner(s)
vs.
State of Haryana and others ....Respondent(s)
***
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
***
Present:- Mr.Parmod Chauhan, Advocate,
for the petitioner.
***
AUGUSTINE GEORGE MASIH, J. (Oral)
Petitioner has approached this Court impugning the order dated 21.3.2006 (Annexure P-2) vide which the Punishing Authority i.e. the Superintendent of Police, Sonepat has dismissed the petitioner from service for a gravest act of misconduct for indulging in eve-teasing/molesting a lady and misbehaving with her under the influence of liquor. Order dated 11.5.2006 (Annexure P-3) passed by the Inspector General of Police, Rohtak range-respondent No.3 i.e. the Appellate Authority and the order dated 21.9.2007 (Annexure P-4) passed by the Director General of Police, Haryana-respondent No.2, the Revisional Authority, dismissing the appeal and revision of the petitioner has also been assailed on the ground that the petitioner stands acquitted by the Judicial Magistrate, Ist Class, Sonepat vide judgment dated 14.3.2011 (Annexure P-5) in FIR No.383 dated C.W.P.No.23461 of 2011 -2- 26.10.2005 registered under Section 354 IPC at Police Station City Sonepat for the same incidence.
Counsel for the petitioner has contended that the impugned orders are non-speaking and, therefore, cannot be sustained. Another plea has been raised is that the Inquiry Officer has proceeded to return a finding of guilt against the petitioner without any evidence on record and this being a case of no evidence, the punishment based on such enquiry report cannot be said to be in accordance with law and, therefore, deserves to be set aside. In support of this contention, reliance has been placed upon the judgment of this Court passed in CWP No.2413 of 2008 titled as Const.Kulbir Singh vs. State of Haryana and others, decided on 28.9.2011. Counsel for the petitioner has also taken a plea that the act of misconduct attributed to the petitioner is not covered by the explanation as provided under Rule 16.2(1) of the Punjab Police Rules, 1934 (for short 'the Rules') and, therefore, the impugned order cannot be sustained in the light of the Division Bench judgment of this Court passed in the case of Dhan Singh vs. State of Haryana and others, 2009 (1) RSJ 62.
On considering the submissions made by the counsel and the records, the prayer made by the petitioner cannot be accepted.
Facts in brief are that the petitioner while he was posted in P.S. Sadar Sonepat on 26.10.2005, indulged in eve-teasing/molesting a lady, namely, Smt.Pushpinder Kaur w/o Shamsher Singh at Gohana road near Panchayat Bhawan when she was waiting for a rickshaw. Petitioner, who was in uniform and was drunk tried to embrace her. She asked him to go away and pushed him aside but he caught hold of her and insulted her. She C.W.P.No.23461 of 2011 -3- raised an alarm and was rescued with the intervention of the people around. He was identified as Satvir Singh which name was mentioned on the name plate of the uniform worn by him. FIR No.383 dated 26.10.2005 under Section 354 IPC Police Station City Sonepat was registered against him. Petitioner was placed under suspension and a departmental enquiry was ordered against him on 27.11.2005. District Inspector was appointed as the Inquiry Officer. Summary of allegations, list of prosecution witnesses and the list of documents to be relied upon were served on the petitioner on 10.11.2005. As the petitioner did not admit his guilt, the Inquiry Officer proceeded to record the statement of the prosecution witnesses. Statements of three prosecution witnesses were recorded in the presence of the petitioner but thereafter he absented himself from police lines and did not come present in the enquiry proceedings. Ex parte proceedings were initiated against him. On 18.11.2005, statements of remaining two prosecution witnesses, namely, Smt.Pushpinder Kaur wife of Shamsher Singh and Dr.Versha Rani, Medical Officer, General Hospital, Sonepat, were recorded by the Inquiry Officer. As all the prosecution witnesses supported the prosecution story, charges were framed against the petitioner which were served on him on 25.11.2005 at his home address. He did not plead guilty to the charge and was, therefore, given an opportunity to submit his list of defence witnesses as also written defence statement. Petitioner preferred neither of the two leading to the Inquiry Officer submitting his enquiry report to the Punishing Authority on 14.12.2005 holding the petitioner guilty of the charges levelled against him. Show cause notice dated 27.12.2005 was served upon the petitioner. Through this show cause C.W.P.No.23461 of 2011 -4- notice, he was called upon to submit his reply within 15 days from the date of receipt of the notice. When no reply was received, reminder dated 23.1.2006 was served on him to submit reply within a week and appear for personal hearing before the Punishing Authority. He did not respond. Finally, last opportunity was granted to the petitioner vide letter dated 14.12.2006 with directions to submit his reply within a week and appear for personal hearing. Ultimately, the petitioner submitted his reply on 28.2.2006. However, the petitioner did not avail of the opportunity of personal hearing.
On considering the written reply submitted by the petitioner, the enquiry report and the evidence on record, Superintendent of Police, Sonepat decided to deal with the contentions of the petitioner and proceeded to dismiss him from service holding his misconduct to be of an act of gravest misconduct inviting the punishment of dismissal from service. The Punishing Authority has also taken into consideration the previous service record of the petitioner according to which he had earned six good entries and 10 bad entries. Out of 10 bad entries, 5 entries are of major punishment in which he has been awarded punishment of stoppage of 25 annual increments with permanent effect. On previous two occasions i.e. in the year 1992 and 2002, the Punishing Authority had passed order of dismissal from service but the Appellate Authority, by taking lenient view, had taken him back in service by imposing a mild punishment. Appeal preferred by the petitioner was dismissed by the Inspector General of Police, Rohtak Range, Rohtak on 11.5.2006 and the revision preferred by him received the same fate vide order dated 21.9.2007 passed by the Director General of C.W.P.No.23461 of 2011 -5- Police, Haryana. Petitioner did not challenge these orders at that stage but has now, after passing of acquittal order by the Judicial Magistrate, Ist Class, Sonepat, dated 14.3.2011 (Annexure P-5), filed the present writ petition assailing the above-mentioned three orders.
There is an unexplained delay on the part of the petitioner to approach this Court impugning the orders passed by the Punishing, Appellate and Revisional Authorities. However, on merits also, the pleas of the petitioner are not acceptable. The first plea raised by the counsel for the petitioner is that there is no evidence against the petitioner which would result in returning the findings by the Inquiry Officer. This contention of the counsel for the petitioner cannot be accepted firstly on the ground that the enquiry report has not been placed on record by the petitioner, however, a perusal of the order dated 21.3.2006 passed by the Superintendent of Police would show that all the five prosecution witnesses who had appeared before the Inquiry Officer had supported the prosecution case. Petitioner had preferred not to participate in the enquiry proceedings after the initial three witnesses had been examined by the prosecution. Opportunity was given to the petitioner to submit list of his witnesses and written defence by the Inquiry Officer which opportunities were also not availed of by the petitioner. Inquiry Officer proceeded to consider the evidence on record and returned findings that the charges stood proved against the petitioner. To the show cause notice also, petitioner did not respond but had responded only after he was given last opportunity when earlier two opportunities were not availed of by him to file reply. Although he did file a reply but did not avail of the opportunity of personal hearing. C.W.P.No.23461 of 2011 -6- The Punishing Authority has taken into consideration all the submissions made by the petitioner in his written reply to the show cause notice and dealt with them.
Reliance has been placed by the petitioner on the judgment of this Court in Const. Kulbir Singh's case (supra) that the enquiry is based on no evidence and, therefore, cannot be made the basis for imposing the punishment upon him, cannot be accepted in the light of the above factual position. No doubt, this Court can interfere in a case where order of punishment imposed upon a delinquent employee is based on no material or evidence but present is not such a case which would attract interference by this Court.
Another contention which has been raised by the counsel for the petitioner is that punishment of misconduct attributed to the petitioner does not find mention in the explanation to Rule 16.2 (1) of the Rules and, therefore, the finding recorded by the Punishing Authority that the misconduct of the petitioner is a gravest act of misconduct entailing punishment of dismissal relying upon the Division Bench judgment of this Court in the case of Dhan Singh vs. State of Haryana, 2008(3) SCT 816 cannot be accepted. In the light of the consideration and rule 16.2(1) of the Rules and explanation thereto by this Court in CWP No.4782 of 2010 titled as Beer Singh, Ex-Constable No.2392/FBD vs. State of Haryana and others, decided on 14.03.2012 , wherein it has been held as follows:-
"For appreciating the scope and ambit of Rule 16.2 (1) of the Rules, 1934 and the explanation attached thereto, C.W.P.No.23461 of 2011 -7- reproduction of the said Rule would be essential which reads as follows:-
"16.2 Dismissal-(1) Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. In making such an award regard shall be had to the length of service of the offender and his claim to pension.
"Explanation.- for the purposes of sub-rule
(1), the following shall, inter alia, be
regarded as gravest acts of misconduct in
respect of a police officer, facing
disciplinary action.-
(i) Indulging in spying or smuggling
activities;
(ii) Disrupting the means of transport or
of communication;
(iii) Damaging public property;
(iv) Causing indiscipline amongst fellow
policemen;
(v) Promoting feeling of enmity or hatred
between different classes of citizens of India
on grounds of religion, race, caste,
C.W.P.No.23461 of 2011 -8-
community or language;
(vi) going on strike or mass casual leave
or resorting to mass abstentions;
(vii) spreading disaffection against the
Government; and
(viii) causing riots and the strife."
Rule 16.2 (1) deals with the situation where
the order of dismissal of a police officer can be passed. It provides that this punishment of dismissal shall only be awarded (i) for the gravest acts of misconduct and (ii) as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service of the officer. While passing such a punishment, regard is mandated to be had to the length of service of the offender and his claim to pension. Although 'gravest acts of misconduct' term has been used in the Rule but it has been held in State of Punjab vs. Gurdip Singh, 1995 (1) RSJ 641, that even a single act of misconduct can, in a given situation, amount to the gravest act of misconduct but the mandate of the rule making authority is clear that the punishment of dismissal from service has not to be awarded in the case of a misconduct of ordinary nature. In Bhagwat Parsad vs. Inspector General of Police and others, 1967 SLR 807, it has been held that the use of word 'acts' did not exclude a single act of C.W.P.No.23461 of 2011 -9- misconduct. In order to give effect to the legislative intent words in plural number may be construed to include the singular and the words importing the singular only, may be applied to plurality of acts, things or persons. In order to gauge gravity of misconduct, what matters, is not frequency but as obliguity or delinquency.
It was for the police officer who judged the infraction of the police rules to determine the seriousness of the misconduct and to decide upon the suitability of the punishment. This would show that it is the gravity of the misconduct which would determine the punishment to be imposed upon the delinquent employee and for that such misconduct proving incorrigibility and complete unfitness for police service, if found, punishment of dismissal shall be awarded. Regard, however, under those circumstances, also shall be had to the length of service of the offender and his claim to pension, which again would be dependent upon the misconduct proved against the delinquent employee.
Explanation to Rule 16.2 (1) has to be read in the context of the above. Although eight misconducts have been spelt out in this explanation, which have been mandated to be regarded as gravest acts of misconduct in respect of a police officer facing disciplinary action. If any of them are proved in the disciplinary proceedings to C.W.P.No.23461 of 2011 -10- have been committed by a police official, nothing more is required as it would amount to a gravest act of misconduct. The word 'inter-alia' used between "the following shall" and "be regarded as gravest acts of misconduct in respect of a police officer, facing disciplinary action" in the explanation is very significant and indicates and explains the intent and purpose of the rule making authority. The word 'inter-alia', as per Chambers Dictionary, means 'among other things', which clarifies that there can be other acts of misconduct also which could be regarded as gravest acts of misconduct. Thus, assigning a restrictive meaning to the term 'gravest acts of misconduct' to those acts only, which have been mentioned in the explanation, would be subtracting something from the rule itself as the intention of the rule making authority is not this. In Dhan Singh's case (supra), this aspect and the placement of the word 'inter-alia' used in the explanation has not been discussed and its effect has also not been considered. The explanation when read by giving effect to the expression 'inter-alia' and the place at which it finds mention would lead the Court to a conclusion, which is not in consonance with the one as reached in Dhan Singh's case. By not giving effect to the impression 'inter- alia' would virtually mean overlooking it as if the C.W.P.No.23461 of 2011 -11- said expression did not exist in the rule itself which would result in obliterating it having the effect of virtually deleting it. This would amount to open and blatant violation of the simple meaning of the statute. It is a settled preposition of interpretation that each word used in the Statute has to be given effect to as per its literal meaning and effect and in doing so, effort should be made to fulfil the object with which the said word/expression has been used by its framers.
In the light of the above, the contention of the counsel for the petitioner that the misconduct of absence from duty cannot be a gravest act of misconduct as it does not find mention in the Explanation to Rule 16.2(1), deserves to be rejected as depending upon the gravity of the misconduct, a single act of misconduct would fulfil the mandate of Rule 16.2 of the 1934 Rules subject however, to the qualifications attached thereto in the Rule itself."
In view of the above, this contention of the counsel for the petitioner stands rejected.
Next contention of the counsel for the petitioner that the petitioner is entitled to reinstatement in service in the light of acquittal of the petitioner in FIR No.383 dated 26.10.2003 registered against him vide judgment dated 14.3.2011 passed by the Judicial Magistrate, Ist Class C.W.P.No.23461 of 2011 -12- Sonepat (Annexure P-5) also cannot be accepted for the reason that a perusal of this judgment would show that as a matter of fact Smt.Pushpinder Kaur, who appeared as PW-2 had supported the prosecution version and had stated that the accused Satvir Singh (petitioner) embraced her and did not stop his activities despite resistance. The Court had proceeded to acquit the petitioner of the charges framed against him by giving him benefit of doubt that an eye witness Rishi PW-1 had resiled from his statement and had been declared hostile. The Court has proceeded to record that the prosecution has failed to prove the charge against the petitioner beyond any reasonable doubt and failed to bridge the gap between 'maybe true' and 'must be true'. Thus, the acquittal of the petitioner is not a clear acquittal and, therefore, the petitioner cannot take benefit of the said judgment especially when the standard of proof to prove the guilt is different in a departmental proceeding and in a criminal trial. In a departmental proceeding, the requirement is preponderance of the guilt whereas in a criminal trial, the guilt has to be proved beyond any reasonable doubt. This onus having been discharged by the prosecution in the departmental proceedings, petitioner cannot press for any concession because of his acquittal in a criminal trial. It need not be emphasized here that the two proceedings i.e. the departmental proceedings against a delinquent employee and criminal proceedings against an accused are two different proceedings which are based on different rules and there are different considerations for returning a finding of guilt.
The impugned order is quite justified based on reasons and material discussed above and does not call for any interference by this C.W.P.No.23461 of 2011 -13- Court.
In view of the above, finding no merit in the present writ petition, the same stands dismissed in limine.
April 03, 2012 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE