Devinder Kumar vs State of Haryana

V.S. Aggarwal, J.—The present writ petition has been filed by Sub Inspector Devinder Kumar seeking quashing of the show cause notice dated 28.7.2000.

The relevant facts are that the petitioner was appointed as Assistant Sub Inspector on 5.8.1985. He was promoted as Sub Inspector on 2.12.1992. A charge-sheet was issued to the petitioner on two allegations :-

"(i) That petitioner had allegedly registered a false case against Dharampal alias Pappu after allegedly accepting Rs. 2000/- as illegal gratification,

(ii) That the petitioner allegedly recovered Rs, I500A in Jama Talasi and only deposited Rs. 150/- with Malkhana."

An inquiry was held by the Deputy Superintendent of Police, He found the petitioner guilty. A show cause notice was issued by Sh. Manjit Singh Ahlawat, IPS, as to why the petitioner should not be reverted to his substantive rank of Assistant Sub Inspector. A reply was submitted by the petitioner.

The Superintendent of Police instead of taking any action on the basis of the reply issued a show cause notice as to why the petitioner should not be dismissed from service. The petitioner submitted another reply. The Superintendent of Police, Bhiwani, on 18.9.1998 dismissed the petitioner from service. The petitioner preferred a statutory appeal before the Deputy Inspector General of Police, Hissar Range, Hisar. The Deputy Inspector General of Police had exonerated the petitioner from the first charge but qua the second charge held that there is a dispute whether Rs. I500/- or Rs. 150/- were recovered from Dharampal as Jama Talasi, Since Rs. 150/- as Jama Talasi was not even deposited by the petitioner and on the basis of the said findings two increments of the petitioner were stopped with cumulative effect. The petitioner filed a revision petition before the Director General of Police. The said revision petition was dismissed.

On 5.8.2000 the petitioner received another show cause notice from the Director General of Police under Rule 16.28 of the Punjab Police Rules, The petitioner assails the said show cause notice asserting that under Rule 16.28 of the Punjab Police Rules, as applicable to the Haryana State (for short "the Rule") the Director General of Police had jurisdiction to call for the awards made by their subordinates. In the present case, the order passed by the Deputy Inspector General of Police had been upheld by the Director General of Police and, therefore, there was no order of the subordinate. Otherwise also, it is claimed that there is no power of review.

The petition as such has been contested. The respondents claimed that while the petitioner was posted as Incharge Police Post, City Fatehabad, at the instance of some person a First Information Report for an offence punishable under Sections 292/294 of the Indian Penal Code had been registered, it was alleged that a sum of Rs. 1500/- had been recovered from the Jama Talasi of accused Dharampal. Only Rs. 150A was shown to have been recovered and even the same was not deposited. Later on, said Dharampal was murdered on the railway line. A regular departmental enquiry was conducted against the petitioner in which he was found guilty. He was dismissed from service on 18.9.1998. The appeal of the petitioner had been partly accepted. The punishment was reduced to stoppage of two future annual increments with permanent effect. While considering the revision petition of the petitioner, the departmental enquiry file and other documents were examined. The revision petition was dismissed. Simultaneously, it was decided to take suitable action for the acts of omission and commission. It was decided to enhance the punishment of stoppage of two future annual increments with permanent effect to that of dismissal from service. A show cause notice was served on the petitioner. The petitioner instead of filing reply had preferred to file the present writ petition.

On behalf of the petitioner, only one pertinent argument had been advanced. It had been argued that the petitioner had preferred a revision petition with the Director General of Police which was dismissed. According to the learned counsel, under Rule 16.28 of the Rules, Director General of Police could only review the order of the subordinates. According to the learned counsel, once the order of the Deputy Inspector General of Police had merged into that of the Director Gen-eral of Police, he could not review the said order under Rule 16.28 of the Rules.

On behalf of the respondents, on the contrary, the plea raised was that in any case this was an independent act and further that only a show cause notice had been issued. The writ petition was not maintainable,

On behalf of the petitioner, reliance was placed on the judgment of the Supreme Court in the case of Chief of Army Staff and Others Vs. Major Dharam Pal Kukrety, A similar argument was advanced that a show cause notice only had been issued. The Supreme Court in the facts of that case held as under :-

"The some contentions, as were raised before the High Court, were taken before us at the hearing of the Appeal. We will first deal with the appellant''s preliminary objection that the respondent''s writ petition was not maintainable as being premature. It was the respondent''s case that the Chief of the Army Staff had no jurisdiction to issue the impugned show cause notice after he had been again found not guilty by the court martial on revision. The said notice expressly stated that the Chief of the Army Staff was of the opinion that the respondent''s misconduct as disclosed in the proceedings rendered his further retention in service undesirable and asked him to submit his explanation and defence, if any, to the charges made against him. If the respondent''s contention with respect to the jurisdiction of the Chief of the Army Staff to issue the said notice were correct, the respondent was certainly exposed to the jeopardy of having his explanation and defence rejected and he being removed or dismissed from service. Were the said notice issued without jurisdiction, the respondent would have then suffered a grave, prejudicial injury by an act which was without jurisdiction. Where the threat of a prejudicial action is wholly without jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the Court''s protection. If, on the other hand, the Chief of the Army Staff had the power in law to issue the said notice, it would not be open to the respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ petition could be said to be premature. This was, however, not a contention which could have been decided at the threshold until the Court had come to a finding with respect to the jurisdiction of the Chief to the Army Staff to issue the impugned notice. Having held that the impugned notice was issued without any jurisdiction, the High Court was right in further holding that the respondent''s writ petitions as not premature and maintainable."

The findings are obvious, unambiguous and clear. In normal circumstances, the Court in exercise of its powers under Article 226 of the Constitution of India will not interfere at the initial stage when show cause only had been issued. However, these are not fetters on the powers of the Court. In an appropriate case, if the interest of justice so requires, such a power can be exercised.

In Chief of the Army Staff and others'' case (supra), the Supreme Court held that such a show cause notice could not be issued. It was without jurisdiction. But herein, this is a matter yet to be adjudicated. When show cause notice only had been issued, the petitioner, indeed, can raise the objection that is being taken in the present writ petition before the Director General of Po-lice. The Director General of Police necessarily will have to adjudicate the same and pass appropriate or- ders as to whether he has jurisdiction to issue show cause notice or not. Thereafter, if the need arises, the petitioner can take further recourse under the law but at this stage we find no reason to exercise extra-ordinary jurisdiction under Article 226 of the Constitution of India.

For these reasons, the writ petition being without merit must fail and is accordingly dismissed.

Petition dismissed