Dharambir Singh vs State of Haryana and Others

Ranjit Singh, J.—Cost paid.

The petitioner has challenged the punishment of stoppage of two future annual increment, besides challenging the order passed by Director General of Police, Haryana rejecting his appeal against the punishment.

The petitioner claims that he has rendered 35 years of meritorious service from the date he was appointed as constable on 9.8.1971. The petitioner is presently working as Inspector Police. He also claims that he has never been punished in his long service and there had never been any adverse remarks in his annual confidential reports throughout his career.

The present trouble leading to punishment arose in the year 2002 when the petitioner was posted as SHO, Police Station, NIT Faridabad. On the night of 19/20.8.2002, owner of one Restaurant, named, Kaka and his wife were murdered by their servants. The petitioner is alleged to have misbehaved with the son of the owner of the Restaurant and had refused to register the FIR when he came to the police station. On the basis of this allegation, the departmental enquiry was ordered against the petitioner on 24.9.2004. A letter was sent to District Magistrate for grant of sanction for holding this departmental enquiry. It is claimed by the petitioner that this was either denied or sanction was not granted as per the rules. On 22.8.2005, another letter was sent seeking fresh sanction. It appears that this time the sanction was granted which is a cause of grievance for the petitioner. The petitioner alleges that such sanction cannot be taken as a valid sanction, which was even otherwise the second sanction and was time barred.

On facts, the petitioner avers that no witness came to support the case against him. So much so even the complainant, as per the petitioner, did not substantiate the allegations when he conceded that he could not tell whether the petitioner was present in the police station at the time of the incident of misbehaving. The petitioner claims that he was not present in the police station at the time when he is alleged to have misbehaved with the complainant and would rely upon entries in the roznamcha dated 20.8.2002 from 7.30 A.M. To 10.40 A.M. Still, the petitioner has been awarded the punishment of stoppage of two future increment on 24.1.2007. His appeal against the punishment has been rejected on 14.12.2007 and, thus, he has filed this writ petition.

In the reply filed by Superintendent of Police, Fatehabad on behalf of respondent Nos. 1 to 4, it is stated that the petitioner had misbehaved with the complainant and had refused to register the FIR of a double murder case. The petitioner being posted on responsible post in a disciplined force, like police, thus, is alleged to have exhibited grave misconduct for which proceedings were initiated against him and the regular departmental enquiry held. The enquiry found the petitioner guilty of the charge and, thus, the punishment of stoppage of two annual increments with permanent effect was passed against him. The action of the Director General of Police in dismissing the appeal is also justified in the reply filed by the respondents. It can be seen that the petitioner has impugned the punishment on the merits of the case pleading that he was not present at police station at the time of alleged incident and hence has been wrongly punished. He would also challenge the punishment on a technical ground that the sanction for holding the departmental proceedings was not obtained or not properly obtained and hence the punishment cannot be allowed to stand.

In exercise of writ jurisdiction, this Court should appropriately re-appreciate the facts to come to a different finding of facts. Witnesses were examined in the departmental enquiry and on the basis of evidence so led, the enquiry found the charges proved against the petitioner. Tajinder Singh complainant, who was examined as PW-7, categorically stated before the enquiry that the petitioner had misbehaved with him. It cannot, thus, be said that there is no evidence against the petitioner which could be advanced a ground to seek interference. The version given by the defence witnesses was rightly discarded on the ground that they were under the influence and control of the petitioner being the employee of the police department. Once the version given by the witnesses have been appreciated, this Court would hardly be in any position to interfere in this finding of fact as recorded.

The second limb of the submission is that there was no sanction obtained or the sanction obtained was being a second sanction or that it was time barred, in my view need not be considered at all. The question to be seen is whether there was a need of sanction of the District Magistrate before proceeding to hold this enquiry against the petitioner. In this regard, reference is made by the petitioner to the provisions of Rule 16.38 of Punjab Police Rules (for short "the Rules"). This rule makes a provision that whenever Superintendent of Police receives information regarding commission of an offence by a police officer, he shall report the matter to District Magistrate, who would order a preliminary enquiry to be held and thereafter would decide whether departmental enquiry should be held or a criminal prosecution be launched. Taking support from this provision, the counsel would contend that sanction was needed from the District Magistrate for holding the departmental enquiry, I have not been able to appreciate this part of the submission made by the counsel for the petitioner. In my view, this rule would come into play only when there is an allegation of commission of an offence by a police officer. This may stand to some logic. When an allegation of commission of an offence is made against a police officer, the action of the police to hold departmental enquiry, may sometimes be taken to save such police officers for criminal liability and hence, the need for sanction. This rule apparently would have no role to play when there is no allegation of commission of an offence. A misconduct which does not reveal any criminal offence obviously, thus, would not be within the purview of Rule 16.38 of the Rules.

In the present case, the allegation against the petitioner is that he has misbehaved with the complainant and had refused to register an FIR of double murder. Prima-facie, misbehaviour with some one, who had come to the police station to lodge a complaint, would not lead to commission of any criminal offence. This, at the most, could be a misconduct by a police officer in regard to performance of his duties. The counsel for the petitioner also could not draw my attention to any penal provision as per which such a misconduct could be treated as a criminal offence. Thus, keeping in view the facts and circumstances of this case, Rule 16.38 clearly is not attracted in this case. Reliance on various judgments, as such, by the counsel in regard to sanction, which has been held to be mandatory, may not need consideration. Still, being fair to the counsel for the petitioner, it may need a notice that he has referred to The Punjab State v. Jagir Singh 1993(4) S.C.T. 535, Ram Phal v. Government of Haryana and Ors. 1996(3) S.C.T. 14 and Ram Karan v. Union of India and Ors. 1973(2) S.L.R. 683. In the case of Jagir Singh (supra), the criminal cases were registered against the police officer and by dispensing with the enquiry, he was dismissed from service by invoking the provisions of Article 311(1)(b) of the Constitution. That is certainly not a position here. The Ram Phal case (supra) apparently is entirely in different context where removal from list-D and reversion of the petitioner was under challenge and was set aside on the ground of violation of principle of natural justice as the order was passed without providing such opportunity to the petitioner concerned. Ram Koran''s case (supra) again would not apply to the facts of this case as there the court observed that the police department cannot pick and choose the cases for obtaining the sanction of District Magistrate in case the person against whom the positions are identical. Thus, these cases apparently have no relevance to the facts of the present case. There is, thus, no merit in the writ petition and the same is dismissed.