Chandigarh Administration and Others vs Central Administrative Tribunal and Another

CM No. 276 of 2013

Allowed subject to all just exceptions and CM disposed of. CWP No. 23202 of 2012

Admit.

Mr. Barjesh Mittal, Advocate for the caveator accepts notice on behalf of respondent No. 2.

Since short question of law is involved, with the consent of learned counsel for the parties, we take up the matter for final decision.

Respondent No. 2 herein was charge-sheeted and an enquiry was held against him on the allegations of commission of breach of trust and cheating with one Mr. Jarnail Singh. It was alleged that respondent No. 2, who is a police officer and working as Head Constable with Union Territory, Chandigarh, was running a Kitty/Committee, in which he had taken number of persons including Jarnail Singh. He had taken certain amount from these persons. However, Kitty amount of Jarnail Singh when matured was not given to him. Mr. Jarnail Singh reported to the police that respondent No. 2 had not paid a sum of Rs. 4,50,000/- including profit and interest on the said Kitty amount. On receipt of this complaint, FIR No. 131 dated 18.4.2007 u/s 406 of the Indian Penal Code was registered against respondent No. 2 with Police Station at Sector 39, Chandigarh on the aforesaid allegations, which is still pending. In the meantime, it was also decided to hold an enquiry, inter-alia, framing of charge for running of the aforesaid Kitty/Committee amounting to doing private business by respondent No. 2. In this enquiry, charge was established and respondent No. 2 was found guilty. He was thus imposed the penalty of dismissal from service vide orders dated 16.11.2009. His appeal was also dismissed on 6.5.2010. He filed revision petition which was also rejected on 6.9.2010. Thereafter, respondent No. 2 approached the Tribunal by filing his O.A. which has been allowed by the Tribunal vide impugned orders dated 23.7.2012. The only reason given by the Tribunal allowing the appeal is that there is infraction of Rule 16.38 of the Punjab Police Rules, 1934 (hereinafter referred to as the Rules) as applicable to the Union Territory, Chandigarh. Rule 16.38 of the Punjab Police Rules reads as under:--

16.38. Criminal offences by police officers and strictures by Courts procedure regarding:--

Immediate information shall be given to the District Magistrate, of any complaint received by the Superintendent of Police, which indicates the commission by a police officer of a criminal offence in connection with his official, relations with the public. The District Magistrate, will decide whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected magistrate having 1st Class powers.

(2) When investigation of such a complaint establishes a prima-facie case, a judicial prosecution shall normally follow; the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded. When it is decided to proceed departmentally the procedure prescribed in Rule 16.24 shall be followed. An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed.

(3) Ordinarily Magistrate before whom a complaint against a police officer is laid proceeds at once to judicial enquiry. He is, however, required to report details of the case to the District Magistrate, who will forward a copy of this report to the Superintendent of Police. The District Magistrate himself will similarly send a report to the Superintendent of Police in cases of which he himself takes cognizance.

(4) The Local Government has prescribed the following supplementary procedure to be adopted in the case of complaints against police officers in those district where abuses of the law with the object of victimizing such officers or hampering investigation is rife. The District Magistrate will order that all petitions against police officers shall be presented to him personally. If he considers that these petitions are of a frivolous or factions (sic) nature, it is within his discretion to take no action on them. When he considers an enquiry to be necessary he will use his discretion whether to send the papers to the Superintendent of Police or to a Magistrate for judicial enquiry.

It is contended that the learned Tribunal has held that the procedure contained in Rule 16.38 of the Rules was not followed and on this ground alone the enquiry is held to be vitiated. Sub-rule (2) of Rule 16.38 mandates obtaining of prior orders from the District Magistrate for holding disciplinary enquiry. The contention, however, is that this rule is not applicable inasmuch as such a permission is required only if the police officer commits a criminal offence "in connection with his official relations with the public" as it is clearly spelt out in sub-rule (1) of 16.38 of the Rules. The submission is that in the present case the enquiry was held under Rule 16.24 of the Rules inasmuch as the misconduct attributed to respondent No. 2 did not relate to his official duties.

Learned counsel for respondent No. 2 on the other hand submits that Rule 16.38 pf the Rules provides mandatory compliance and non-compliance thereof would vitiate the entire proceedings. In support of this plea learned counsel has referred to the judgments of Supreme Court in case Union of India (UOI) Vs. Ram Kishan, and Delhi Administration Vs. Chanan Shah, and of this Court in the case of The Punjab State and Others Vs. Lachhman Singh, Ex-Constable

There is no denial of the proposition of law sought to be advanced by learned counsel for respondent No. 2 that Rule 16.38 of the Rules provides mandatory compliance and the procedure contained therein has to be followed but what is to be examined in the first instance is as to whether this Rule is applicable at all in the present case. Only when the Rule is applicable, the question of mandatory compliance thereof would arise.

After going through the said Rule we find substance in the contention of learned counsel for the petitioner that it would be applicable only in those cases where the police officer commits criminal offence which is in connection with his official relations with the public. In the present case, as pointed out, the act on the part of respondent No. 2 was in private capacity and had nothing to do with the official duties. In such a situation, Rule 16.38 shall have no application at all. We are fortified in our conclusion by the Division Bench judgment of the Himachal Pradesh High Court in the case of Shri Bhagat Ram v. Inspector General of Police, Himachal Pradesh and others 1979 (3) SLR 256. In that case, the allegation against the delinquent official was that after his duty he went in a dry area and consumed liquor and thereafter indulged in rowdyism and as such he was late in duties. It was treated as an offence committed in his personal capacity and was not in connection with his official relations with public. On that basis, the Division Bench of the said High Court held that Rule 16.38 was not attracted.

We find from the impugned judgment that the learned Tribunal even did not advert to this issue and did not even appreciate that Rule 16.38 was not applicable in the instant case. No doubt, once this Rule becomes applicable, the procedure contained in Rule 16.24 has to be followed. However, again that is only when the Rule is applicable, then the question of proceeding departmentally would arise in accordance with the procedure contained in Rule 16.24 of the Rules. Once we find that Rule 16.38 of the Punjab Police Rules is not even applicable, the question of infraction thereof namely prior orders from the District Magistrate for proceeding departmentally would not arise. We thus set aside the impugned order of the Tribunal. As a consequence, the O.A. filed by the respondent No. 2 herein is also dismissed.