Punjab-Haryana High Court
State Of Haryana And Others vs Const. Ashwani Kumar on 10 January, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
RSA No. 1754 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 1754 of 2013 (O&M)
Date of Decision 10.01.2014
State of Haryana and others
....Appellants
Versus
Const. Ashwani Kumar
....Respondent
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. S.S.Pattar, Sr. DAG, Haryana
for the appellants
***
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
*** RAMESHWAR SINGH MALIK J.
Defendants are in second appeal against the judgment of reversal dated 12.12.2012 passed by the learned Additional District Judge, Kurukshetra whereby the judgment and decree dated 4.10.2012 passed by the learned trial court dismissing the suit of the plaintiffs was set aside, allowing the appeal filed by the plaintiff- respondent.
Facts first.
Brief facts of the case, as recorded by the learned lower Kumar Amit appellate court in para 2 and 3 of the impugned judgment, are that 2014.01.31 16:10 I attest to the accuracy and integrity of this document RSA No. 1754 of 2013 (O&M) 2 the plaintiff-respondent was initially enlisted as Constable in Haryana Police, Tele-Communication Wing on 29.10.2003. It was his further pleaded case that plaintiff had been discharging his duties honestly and sincerely to the entire satisfaction of his superiors. However, a departmental enquiry was conducted against the plaintiff for his alleged misbehaviour with three lady Constables, while posted on deputation in CID Haryana at Panchkula. On that very account, a criminal case was also registered at police station Sadar Thanesar, vide FIR No. 19 dated 10.1.2005 alleging that the plaintiff misbehaved with three lady Constables on 9.1.2005 at Pipali Bus Stand. Plaintiff wrote to the Superintendent of Police, Tele- Communication Wing, Haryana, for changing the Enquiry Officer on the ground that he was having some inter se dispute of seniority with him. It was further alleged that since the Enquiry Officer was biased against the plaintiff, enquiry was not conducted in accordance with law. Neither the relevant documents were supplied to the plaintiff nor adequate opportunities were granted to him to cross-examine the witnesses whereas the Enquiry Officer himself cross-examined the witnesses. On the basis of the enquiry, show cause notice was issued to the plaintiff proposing punishment of stoppage of two annual increments with permanent effect. Plaintiff submitted his reply to the show cause notice and punishment of Censure was awarded to him vide order dated 22.5.2006.
However, after a lapse of period of more than one year, plaintiff was issued another show cause notice dated 27.9.2007 by Kumar Amit defendant No.3, i.e. Inspector General of Police, Tele- 2014.01.31 16:10 I attest to the accuracy and integrity of this document RSA No. 1754 of 2013 (O&M) 3 Communication Wing, under rule 16.28 of the Punjab Police Rules proposing stoppage of five annual increments with permanent effect in place of Censure. Plaintiff submitted his reply to the show cause notice, which was summarily rejected and punishment of stoppage of two annual increments with cumulative effect was awarded vide order dated 27.9.2007. He filed his appeal dated 21.11.2007 before the Director General of Police, Haryana challenging the abovesaid punishment dated 27.9.2007 on different grounds. However, appeal of the plaintiff was rejected summarily by the Additional Director General of Police, Haryana and not by the Director General of Police, Haryana himself.
Having been left with no other option, plaintiff filed the present suit. After having been served in the suit, defendants appeared and filed their written statement taking preliminary objections that suit was not maintainable, plaintiff has no locus standi to institute the suit and the suit was bad for misjoinder and non- joinder of the necessary parties. On merits, punishment order was sought to be defended alleging that the competent authority was fully empowered to pass the punishment order under Rule 16.28 of the Punjab Police Rules. Acquittal of the plaintiff in criminal case was admitted, but it was contended that departmental proceedings could run simultaneously with criminal proceedings and the standard of proof in criminal proceedings was completely different from the standard of proof that was required to be in the departmental proceedings.
Kumar Amit
On completion of pleadings of the parties, the learned trial 2014.01.31 16:10 I attest to the accuracy and integrity of this document RSA No. 1754 of 2013 (O&M) 4 court framed the following issues:-
"1. Whether orders dated 27.9.2007 and 22.5.2006 passed by defendants No.3 and 5 respectively are illegal, nonest, biased, arbitrary, unfounded and as such liable to be set-aside? OPP
2. If issue No.1 stands proved, whether plaintiff is entitled to get restored his two annual increments with cumulative effect?OPP
3. Whether suit is not maintainable? OPD
4. Whether plaintiff has no locus-standi to file the present suit? OPD
5. Whether suit is bad for mis-joinder and non- joinder of necessary parties? OPD
6. Relief"
With a view to substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence available on record, the learned trial court came to the conclusion that plaintiff failed to prove his case and accordingly, suit was dismissed. Feeling aggrieved, the plaintiff filed his appeal, which came to be allowed by the learned Additional District Judge, Kurukshetra, vide impugned judgment dated 12.12.2012. Hence this second appeal at the instance of the defendants.
Learned counsel for the State submits that learned lower appellate court proceeded on an erroneous approach, while passing the impugned judgment and decree. He further submits that there Kumar Amit 2014.01.31 16:10 I attest to the accuracy and integrity of this document RSA No. 1754 of 2013 (O&M) 5 was sufficient evidence available on record to show that the punishment order was legally sustainable. He also submits that acquittal of the respondent in the criminal case will not give him a clean chit, nor power of the competent authority to award suitable punishment would be adversely affected by it. He next contended that since the standard of proof in criminal case and departmental proceedings were different, there was nothing wrong with the punishment orders passed by the authorities. Finally, he prays for setting aside the impugned judgment and decree by allowing the present appeal.
Having heard the learned counsel for the appellants, after careful perusal of record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that in the given fact situation of the present case, no interference is warranted at the hands of this Court while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure, for the following more than one reasons.
No doubt, the standard of proof in criminal proceedings cannot be said to be same to prove the charges against a delinquent in departmental proceedings. However, it is equally true that every administrative order passed by a competent authority must be supported by cogent reasons. In the present case, punishment order dated 22.5.2006 as well as appellate order dated 27.9.2007 were conveniently silent about acquittal of the plaintiff-respondent in the criminal case. It was so in spite of the admitted fact that charges Kumar Amit against plaintiff, in the criminal case as well as in the departmental 2014.01.31 16:10 I attest to the accuracy and integrity of this document RSA No. 1754 of 2013 (O&M) 6 proceedings, were same. In such a situation, the disciplinary authority as well as the appellate authority were under legal obligation to deal with this material aspect of the matter, while passing their respective orders.
The authorities would do well, while discussing the issue of acquittal of the plaintiff and distinguishing the same recording cogent reasons in support of their orders. However, in the present case, it has not been so done either by the disciplinary authority or by the appellate authority. Having said that, this Court feels no hesitation to conclude that the learned lower appellate court committed no error of law, while passing the impugned judgment and decree and the same deserve to be upheld.
Before arriving at a judicious conclusion, the learned lower appellate court recorded its cogent findings, which have been found to be based on sound reasons. Findings recorded by the learned lower appellate court in para 10 of the judgment, read as under:-
"Order dated 9.5.2008 Ex.P5 passed by Additional Director General of Police. Adminstration Harayana-cum-Revisional Authority does not say anything about the acquittal of the appellant notwithstanding the fact that in his revision Ex.P6, it has been clearly mentioned by the appellant that in the case arising out of the FIR No.38/2005 for the commission of an offence punishable under Section 294 read with Section 34 of the Indian Penal Code, the Court of Mrs. Vivek Kumar Amit 2014.01.31 16:10 I attest to the accuracy and integrity of this document RSA No. 1754 of 2013 (O&M) 7 Bharti, the learned Additional Chief Judicial Magistrate, Kurukshetra had acquitted the appellant vide judgment dated 23.2.2006 Ex.P9. When the order of acquittal was passed before passing the order punishment, the appellant must have mentioned the same before Punishing Authority i.e. Superintendent of Police and he had specifically mentioned it in his representation filed before Additional Director General of Police, who had not discussed anything in the order about the fact of acquittal. It may be that the proceedings before the Criminal Court and the disciplinary proceedings have different procedures and standards but the criminal case on the same set of facts as in this case cannot be altogether ignored and thus, the order passed by Additional Director General of Police cannot be said to be a speaking order. In the case of Mohinder Singh Gill versus The Chief Election Commissioner, 1978 AIR SC 851, it was held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional Kumar Amit 2014.01.31 16:10 I attest to the accuracy and integrity of this document RSA No. 1754 of 2013 (O&M) 8 grounds later brought out."
A bare perusal of the abovesaid findings recorded by the learned lower appellate court would show that learned Additional District Judge rightly considered the true factual aspect of the matter and correctly appreciated the law applicable thereof. Under these circumstances, no fault can be found with the abovesaid findings recorded by the learned lower appellate court, because of which the impugned judgment and decree deserve to be upheld.
Further, during the course of hearing, learned counsel for the appellants failed to point out any jurisdictional error or patent illegality apparent on the record of the case in the impugned judgment rendered by the learned lower appellate court. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by the learned lower appellate court. Similarly, learned counsel for the appellant did not raise any question of law much less substantial question of law thereof.
It is the settled proposition of law that in the absence of any substantial question of law, interference at the hands of this Court, while exercising its appellate jurisdiction under Section 100 CPC would be impermissible. In this view of the mater, it is unhesitatingly held that since the impugned judgment has not been found to be suffering from any patent illegality or perversity, the same deserves to be upheld for this reason, as well.
Since the appeal is being dismissed, application for condonation of delay has also been found devoid of any merit and the Kumar Amit 2014.01.31 16:10 I attest to the accuracy and integrity of this document RSA No. 1754 of 2013 (O&M) 9 same is ordered to be dismissed, as no sufficient ground has been made out for condoning the delay.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, devoid of merit and without any substance. Thus, it must fail. No case for interference has been made out.
Resultantly, the instant regular second appeal stands dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE 10.01.2014 AK Sharma Kumar Amit 2014.01.31 16:10 I attest to the accuracy and integrity of this document