ASI Naresh Kumar vs State of Haryana and Others

Augustine George Masih, J.—Petitioner has approached this Court praying for setting aside of the order dated 03.11.2012 (Annexure P-5) vide which the petitioner has been dismissed from the service by the Senior Superintendent of Police, Jind, by invoking Article 311 (2) (b) of Constitution of India and order Annexure P-7 passed by the Inspector General of Police, Hisar Range, Hisar-respondent No. 3 whereby the appeal, preferred by the petitioner against the order of his dismissal, stands rejected.

It is the contention of the counsel for the petitioner that the petitioner, while serving as an Assistant Sub Inspector was entrusted with the responsibility to serve the warrant of arrest dated 26.10.2012 upon one Shri Sultan Singh passed by the Sub-Divisional Magistrate, Safidon, whereby the said person was charged with offences under Sections 107/151 Cr.P.C. Petitioner had gone to execute the said warrant of arrest, it is there that a scuffle took place between the petitioner and Sultan Singh, who, according to the petitioner, has a dubious character as there are as many as five FIRs registered against him and in support thereof, he has referred to Annexure P-2 (page 61 of the present petition) which contained the list of cases registered against said Sultan Singh, which information was supplied to him under the Right to Information Act. It is at his behest, thereafter that a complaint was filed against the petitioner where the allegations were made that the petitioner had demanded an amount of Rs. 5,000/- for proceeding with a complaint which was submitted by Sultan Singh of which the petitioner was an Investigating Officer. On the basis of this complaint, it is alleged that the amount of Rs. 5,000/- was received by the petitioner and when the raiding party went to arrest the petitioner, although there was no recovery effected from him of the amount of Rs. 5,000/-, however, when his hands and pockets of his clothes were washed, the water turned pink which indicated that an amount, which was handed over by the complainant Sultan Singh, was received by the petitioner and on that basis, FIR No. 25 dated 01.11.2012, under Section 7 of the Prevention of Corruption Act, was registered at Police Station State Vigilance Bureau, Hisar, against the petitioner. The petitioner was arrested on the very same date i.e. 01.11.2012.

A departmental enquiry was initiated against the petitioner vide order dated 02.11.2012 and by the same order, he was placed under suspension with effect from 01.11.2012 for having been arrested in the FIR registered against him. On 03.11.2012, the impugned order (Annexure P-5) has been passed by invoking Article 311 (2) (b) of Constitution of India asserting therein that the misconduct attributed to the petitioner would be detrimental to public interest. A common experience which has been referred to in the said order is that the witnesses could be terrorized and intimidated by the police officials which is a common tactic adopted and the complainant would not come forward against the petitioner in the departmental enquiry, if held, against the petitioner. It has also been mentioned that an enquiry was got conducted by the Deputy Superintendent of Police, Safidon, and the said official had given a written report which was received in the office of the Senior Superintendent of Police, Jind, and taking the same into consideration, the competent authority came to a conclusion that it was not reasonably practicable to hold an regular departmental enquiry against the petitioner nor would it be in public interest to do so which, therefore, led to the competent authority to exercise the powers under Article 311 (2) (b) of Constitution of India for dispensing with the holding of the regular departmental enquiry against the petitioner resulting in order of dismissal.

Petitioner, thereafter, has preferred an appeal against this order of dismissal which stands rejected by the Inspector General of Police, Hisar Range, Hisar vide order Annexure P-7 holding therein that since the petitioner was found indulging in corrupt practices of demanding bribe of Rs. 5,000/- from the complainant for taking action on the complaint/application submitted by his father, it amounted to a grave misconduct in nature which is unbecoming of a police officer and the powers exercised by the Senior Superintendent of Police, being in consonance with law, did not call for any interference in appeal.

Counsel for the petitioner contends that the ground which have been invoked by the punishing authority for coming to a conclusion that it was not reasonably practicable to hold an departmental enquiry against the petitioner and it would be in public interest to dispense with the enquiry cannot be said to be justified specially when Rule 16.24 (3) of the Punjab Police Rules, 1934 as applicable to the State of Haryana, deals with such a situation wherein the departmental enquiry can be dispensed with. The situations which have been mentioned therein would not cover the present case and, therefore, the action taken by the Senior Superintendent of Police, Jind, being violative of the statutory rules cannot sustain. That apart, he contends that the reasons assigned for dispensing with the enquiry under Article 311 (2) (b) of Constitution of India, cannot be said to be fulfilling the mandate as has been provided for and protection granted thereunder and there being no basis for proceeding with passing of the impugned order dated 03.11.2012 (Annexure P-5), the writ petition deserves to be allowed by setting aside the impugned orders.

On the other hand, counsel for the State has referred to the original records on the basis of which order dated 03.11.2012 (Annexure P- 5) has been passed by the Senior Superintendent of Police, Jind. He has produced the original records in Court wherein the report submitted by the Deputy Superintendent of Police, Safidon, dated 03.11.2012 addressed to the Senior Superintendent of Police, Jind, stands appended. Referring to the said report, he contends that there were telephonic communications through mobile between the petitioner and complainant. Apart from that, in the raid conducted by the raiding party of the Vigilance Department, on washing of his hands and the pockets of his clothes with water becoming pink which proved that as a matter of fact, the money had exchanged the hands between the complainant and the petitioner and since the petitioner has indulged into an act which was unbecoming of a police officer, there was reasonable justification in the mind of the competent authority on the basis of the enquiry report submitted by the Deputy Superintendent of Police, Safidon, that witnesses would not come forward to depose in the departmental enquiry which was initiated against the petitioner and, therefore, the competent authority invoking the powers under Article 311 (2) (b) of Constitution of India has proceeded to pass the order dated 03.11.2012. He has referred to the written complaint of the complainant on record on the basis of which further action was taken by the respondents including the conducting of raid where the petitioner has been caught red handed, although without recovery of the amount of Rs. 5,000/-, but there is no doubt that the money was handed over to the petitioner because his hand and pockets of his clothes turned pink on washing.

State counsel has placed reliance upon the judgment passed by this Court in CWP No. 3117 of 2010, titled as ''Ex. EHC Chhaju Ram Vs. State of Haryana & others'', decided on 21.12.2011, wherein it has been held that the competent authority on the basis of assessment of the facts and circumstances of the case can come to a conclusion that it was not reasonably practicable to hold a regular departmental enquiry against the police official. It is the subjective satisfaction of the competent authority i.e. the punishing authority to reach such a conclusion and Court should not generally opine upon the same if there is reasonable justification for taking such a decision. Such authority being the best judge in the prevalent situation and this decision need to be honoured. There is no allegation of mala fides against the respondent authorities and, therefore, the orders impugned in the present writ petition deserve to be upheld.

Reliance has also been placed upon the judgments of the Hon''ble Supreme Court in Satyavir Singh and Others Vs. Union of India (UOI) and Others, to contend that where regular departmental enquiry has been initiated, the competent authority even can during the pendency of the enquiry come to a conclusion that it was not reasonably practicable to hold an enquiry and proceed to pass an order under Article 311 (2) (b) of Constitution of India.

He further asserts that merely because the complainant is a history-sheeter or as cases stand registered against him, that in itself cannot be a ground for coming to a conclusion that he cannot be terrorized and intimidated to appear as a witness in the departmental proceedings which were initiated against the petitioner.

I have considered the submissions made by the counsel for the parties and with there assistance have gone through the records of the case.

Petitioner, who is an Assistant Sub Inspector and admittedly was an Investigating Officer in an application/complaint submitted by the father of complainant Sultan Singh which was a cross-case as the other party has also filed a complaint, was dealing with the case of the complainant. It is also not in dispute that the petitioner was called upon to execute the warrant of arrest dated 26.10.2012 (Annexure P-3) issued by the Sub Divisional Magistrate, Safidon, upon Shri Sultan Singh (complainant) who was charged with the offences under Sections 107/151 Cr.P.C. As per the assertion of the petitioner, he had gone to execute the warrant of arrest upon the complainant and a scuffle had been taken place between the petitioner and Sultan Singh. These circumstances led to the filing of the complaint against the petitioner where the allegation of demand of bribe of Rs. 5,000/- is alleged to have been made which was taken note of and a raid was conducted. Although the petitioner was not found to have been in possession of Rs. 5,000/- but his hands as also the pockets of the clothes when got washed with water, the same turned pink. FIR No. 25 dated 01.11.2012, under Section 7 of the Prevention of Corruption Act stands registered against him. He was arrested on the same date and on the very next day, vide order dated 02.11.2012 (Annexure P-4), the petitioner was placed under suspension with effect from 01.11.2012 on his arrest in the corruption case registered against him and further the Deputy Superintendent of Police, Head Quarter Jind was ordered to conduct a regular departmental enquiry on day to day basis against the petitioner.

As per the stand of the respondents, the Deputy Superintendent of Police, Safidon, was also asked to hold enquiry, who submitted a report dated 03.11.2012 (as available on the original record of the department produced in Court) to the Senior Superintendent of Police, Jind, on 03.11.2012 which became the basis for coming to a conclusion that it was not reasonably practicable and it would be in public interest to dispense with the holding a regular departmental enquiry against the petitioner and a good case for invoking Article 311 (2) (b) of Constitution of India for dismissal of the petitioner.

It may be recorded here that although the petitioner has asserted that there was a scuffle between the petitioner and complainant Sultan Singh when he had gone to execute the warrant of arrest but there is no complaint or any information submitted by the petitioner supporting this aspect, however, what the Court is required to determine in the present proceedings is limited to the extent as to whether the competent authority while invoking Article 311 (2) (b) of the Constitution of India, came to a conclusion with regard to dispensing of enquiry against the petitioner was reasonable, justified and based upon certain information which would support such a decision having been taken by the competent authority.

The order under challenge primarily is based upon the conclusions which have been drawn by the Deputy Superintendent of Police, Safidon, in his enquiry report dated 03.11.2012 which has been produced and placed on the original record of the department. The reasons which have been assigned in the order of punishment are spelt out which reads as follows:-

"The involvement of ASI Naresh Kumar No. 675/Jind in such shameful criminal activity have eroded the faith of common people in police force and his continuance in the force is likely to cause further irreparable loss to the functioning and credibility of Haryana Police. The defaulter has acted in a manner likely unbecoming of a Police Official.

After such of serious misconduct, if he is allowed to continue in the police force, it should be detrimental to public interest. Besides, it is common experience that terrorizing and intimidating the witnesses and complainant not to come forward to depose against the delinquent in the departmental enquiry and now it become common tactic adopted by the involved police official. It is also for great courage to depose against such a desperate person and the task become more acute and difficult where the delinquent is police official, who may use to influence on their statements/deposition. It is not possible to keep ASI Naresh Kumar in Police force for more longer time in public interest, hence departmental enquiry initiated against the defaulter and kept placed under suspension vide this office order 34889-94 dated 02.11.2012 is hereby withdrawn with immediate effect in public interest.

Keeping in view, the over circumstances of the case and analysis of report received from Dy. Supdt. Of Police, Safidon, I, Saurabh Singh, IPS, Superintendent of Police, Jind, in exercised of the powers conferred upon me by virtue of article 311 (2) (B) of Constitution of India, hereby order to dismiss ASI Naresh Kumar No. 675/Jind from service with immediate effect. Order shall be booked and a copy be delivered to him free of cost under proper receipt."

A perusal of the above would show what has weighed in the mind of competent authority to come to a conclusion that it would not be reasonably practicable to hold a regular departmental enquiry against the petitioner, was that the witnesses and the complainant would not come forward to depose against the petitioner in the departmental enquiry and these observations are also of general nature without there being any specification or any explanation to this effect. The words used are that it is common experience and a common tactic adopted by the police officials involved in departmental proceedings. This in itself cannot be a ground for dispensing with a regular departmental enquiry in a case. Merely because some telephonic calls have been referred to in the enquiry held by the Deputy Superintendent of Police, Safidon, in his report dated 03.11.2012 between the petitioner and the complainant, that would not be enough for coming to a conclusion that the complainant would not come forward to depose against the petitioner in the departmental enquiry. It may be added here that the ground for dispensing with the regular departmental enquiry relates to the involvement of the petitioner in a case of corruption and registration of FIR No. 25 dated 01.11.2012 under Section 7 of the Prevention of Corruption Act. It has been asserted that this shows the criminal tendency and immoral attitude of the petitioner and the continuance of the petitioner in the police force is likely to cause irreparable loss to the functioning and credibility of the police force and which is unbecoming of a police official and cannot be permitted. The fact that in the criminal case which has been registered against the petitioner apart from the complainant there may be a shadow witnesses (as the counsel for the State, even on instructions from the official present in Court, is unable to inform the Court as to whether the shadow witness was official or not) may be examined. Apart from these witnesses, all other witnesses are police officials which were members of the raiding party and it cannot be said that there would be no evidence available in the departmental proceedings initiated against the petitioner or that those officials would be intimidated or would have been terrorized to depose against the petitioner in the departmental enquiry already initiated against the petitioner. The basis and the conclusion drawn by the punishing authority for invoking powers under Article 311 (2) (b) of Constitution of India for dispensing with the enquiry against the petitioner is hypotechnical and not made out from the impugned order nor does it fulfill the requirement as has been laid down by various judgments of this Court and the Hon''ble Supreme Court to fulfill the requirements of the Constitutional mandate.

The judgments which have been relied upon by the counsel for the respondents and the principles laid down therein cannot be disputed with. It is apparent and available not only under the provisions of the Punjab Police Rules as applicable to the State of Haryana i.e. 16.24 (3) which even permits invoking of the powers for dispensing with the regular departmental enquiry after initiation thereof. The same reads as follows:-

"16.24 Procedure in departmental enquiries:-

(1) XXX XXX XXX

(2) XXX XXX XXX

(3) Notwithstanding anything contained in these rules, where an officer, empowered to dismiss, remove or reduce in rank the police officer accused of misconduct, is satisfied at any stage during an enquiry that for reasons, to be recorded in writing by that officer, it is not reasonably practicable to hold the enquiry after that stage, he will straight-away awarded the punishment.

Explanation:- For the purposes of sub-rule (3), initiation of disciplinary proceedings against the police officer on the grounds of:-

(i) indulging in spying or smuggling activities;

(ii) disrupting the means of transport or of communication;

(iii) damaging public property;

(iv) creating indiscipline amongst fellow policemen;

(v) promoting feelings of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, 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 like; shall be a sufficient reason for concluding that it is not reasonably practicable to hold the enquiry."

The instances referred to under the said Rule in the explanation clause cannot be said to be covering all situations, however, they do give an indication as to under which situation(s) powers under Article 311 (2) (b) of Constitution of India or under the Punjab Police Rules can be invoked for dispensing with the enquiry. Present is not such a case as has been considered above.

Both the judgments which have been referred to by the counsel for the respondents i.e. Ex.CHC Chhaju''s Ram case (supra) and Satyavir Singh''s case (supra) would not be of any help to the respondents in the present case for the reasons which have been assigned above.

I am of the considered view that the impugned order dated 03.11.2012 (Annexure P-5) passed by the punishing authority invoking powers under Article 311 (2) (b) of Constitution of India are not in accordance with law and, therefore, cannot sustain and similarly the order (Annexure P-7) passed by the Inspector General of Police, Hisar Range, Hisar, also cannot be said to be in accordance with law.

In view of the above, the present writ petition is allowed. Impugned order dated 03.11.2012 (Annexure P-5) and order Annexure P-7 are hereby quashed. Liberty is, however, granted to the respondents to proceed against the petitioner through a regular departmental enquiry and thereafter pass appropriate orders in accordance with law. It is, however, clarified that with the quashing of the order dated 03.11.2012 (Annexure P- 5), the order dated 02.11.2012 (Annexure P-4) would stand revived.

The original record as produced in Court has been returned to the counsel for the State.