A.S.I. Darshan Singh and Others vs The State of Haryana and Others

Jawahar Lal Gupta, J.—The petitioners are the members of the Police Force in the State of Haryana, Disciplinary proceedings were initiated against them. It was alleged against them that they had stopped the persons who were taking cattle towards U.P. and allowed them to go only after taking illegal gratification from them. An enquiry was held. Mr. Sagar Singh, Deputy Superintendent of Police, Jagadhari submitted a report dated February 9, 1995. He held that the charge of accepting illegal gratification is not proved. However, all the defaulters were found guilty of having stopped the cattle owners. Thereafter, the Superintendent of Police, Yamuna Nagar issued a show cause notice to the petitioners calling upon them to show cause as to why they be not dismissed from service. The petitioners submitted their replies. Vide order dated June 27, 1995, he held that "illegal checking by the defaulters is fully proved and illegal checking proves taking of bribe." However, taking a lenient view, he imposed the penalty of stoppage of two future annual increments with permanent effect on ASI, Darshan Singh. A copy of this order is on record as Annexure P.3 with the writ petition. By another order dated March 20, 1995, a copy of which is at Annexure P.4, the Superintendent of Police inter alia held that the defaulters being members of the disciplined force were guilty of misconduct and ordered the stoppage of 10 future annual increments with permanent effect in respect of remaining seven petitioners. All the petitioners filed appeals. Vide order dated nil, a copy of which is at Annexure P,6 with the writ petition, the Deputy Inspector General of Police, Ambala Range; dismissed the appeal filed by petitioner No. l. So far as the other petitioners were concerned, the penalty of stoppage of 10 increments was reduced to that of stoppage of two increments with permanent effect. The petitioners filed two sets of revision petitions. These were dismissed vide separate orders dated November 12, 1996, copies of which have been produced as Annexures P.8 and P.9 with the writ petition. The petitioners pray that the orders at Annexures P.3, P.4, P.6, P.8 and P.9 be quashed.

A written statement has been filed on behalf of the respondents. The claim made on behalf of the petitioners has been controverted.

The petitioners filed a replication to reiterate their stand. They also produced a copy of the enquiry report.

Counsel for the parties have been heard.

One of the contentions raised by Mr. I.S. Balhara is that the impugned orders had been passed without affording a due and reasonable opportunity to the petitioners. Is it so?

Admittedly, the enquiry officer had found that the charge of accepting illegal gratification was not proved. It had been further observed that "the defaulters had stopped the animal traders". After the receipt of the enquiry report, the disciplinary authority had issued show cause notices to the petitioners. It was not even remotely suggested by the disciplinary authority that it had any reservation about the finding recorded by the enquiry officer in respect of the charge relating to the acceptance of illegal gratification. However, while passing the order of punishment, it held that "illegal checking by the defaulters is fully proved and illegal checking proves taking of bribe". In the order dated March 20, 1995, the disciplinary authority has inter alia observed that it had come to the conclusion that all the defaulters have won over the witnesses.... The statement of the SHO, Police Station City, Jagadhari cannot be treated as false. The defaulters being the members of the disciplined force and found taking bribe of Rs. 200/- on the night of 9.6.94 during checking from Irfan Mohd. ete....." With these findings, the orders of punishment were passed against the petitioners. Thus, it is clear that the disciplinary authority had arrived at a finding different from that recorded by the enquiry officer.

The enquiry is held to ascertain the factual position. It is a proceeding to find out the truth. The enquiry officer has to determine whether the charges as levelled against the delinquent employee are borne out from the evidence produced on behalf of the department or that the employee is free from blemish. The finding recorded by the enquiry officer is normally placed before the disciplinary authority. In the very nature of things, it is open to the disciplinary authority to disagree with the enquiry officer. It has the option to ask for a further enquiry or even to record its dis-agreement with the findings recorded by the enquiry officer on the basis of the evidence which has already been brought on the file. However, if the disciplinary authority chooses to dis-agree with the findings recorded by the enquiry officer, it would only be fair that it records its reasons for doing so. Not only that. These reasons should be even communicated to the employee so that he has an opportunity to show that the reasons are not tenable in view of the evidence en the record or that the conclusion recorded by the disciplinary authority is not warranted by the circumstances of the case. This would be in consonance with the principles of natural justice and fair play.

What is the position in the present case?

Admittedly, the disciplinary authority had nor even given an indication to the petitioners that it did not agree with the finding recorded by the enquiry officer. Thus, the petitioners had no opportunity to tender any explanation in that behalf before the disciplinary authority. This was, in our view, violative of the principles of natural justice.

It is true that the findings recorded by the disciplinary authority have been confirmed by the appellate and the revisional authorities. However, the ratification of an illegality cannot cure the defect. Resultantly, the impugned orders are liable to be set aside. We do so. However, it is clarified that this shall not preclude the respondents from proceeding afresh against the petitioners, if they are so advised, in, accordance with law.

It was also submitted by the counsel for the petitioners that some of them have been superseded on account of the aforementioned illegal orders. The orders regarding the promotion of alleged juniors have not been specifically challenged. In any event, no prayer in that behalf has been made. In this situation, it is clarified that in case, the petitioners are ultimately exonerated, their claim for promotion shall be considered in accordance with law.

The writ petition is allowed. The orders at Annexures P-3, P-4, P-6, P-8 and P-9 are set aside. In the circumstances, there will be no order as to costs.