Ram Lal vs State Of H.P. And Others

Ajay Mohan Goel, J

By way of this petition, the petitioner has inter alia prayed for the following substantive reliefs:-

“(i) That writ of certiorari may kindly be issued, quashing/setting aside the impugned Show Cause Notice dated 28.08.2019 (Annexure P-6) and

order dated 21.10.2019 (Annexure P-8).

(ii) That writ of mandamus may kindly be issued, directing the respondents to allow the petitioner to continue to work as Assistant Sub Inspector and

not to compel the petitioner to join his duties on the lower rank of Head Constable as per Annexure P-8.â€​

The case of the petitioner is that he joined the Police Department as a Constable in the year 1988. He was promoted as Head Constable in the year

1993 and as a Assistant Sub Inspector in the year 2009.

In the month of December, 2006, while the petitioner was posted as Incharge, Police Post City Mandi, he was entrusted with the investigation of

FIR No. 322 of 2016, registered under Sections 420, 467, 468, 469, 471 read with Section 120-B of the Indian Penal Code.

During the course of investigation, the petitioner was pressurized by a senior police officer to take out the name of another police official from the

case file whose involvement was found during the course of investigation. This fact was duly recorded by the petitioner in the daily diary as Rapat No.

16 maintained by the police.

Annoyed of this fact, explanation was sought from the petitioner by senior officer on 17.01.2017 which was duly replied by him on 18.01.2017. This

was followed by another explanation which was called on 04.02.2017, which was also replied by him on 06.02.2017.

On 06.02.2017, petitioner was awarded a commendation certificate by the department for the investigation carried out by him in the FIR.

His case is that a criminal case has been foisted upon him at the instance of superior officer. While referring to daily diary entries Annexure P-1,

dated 13.12.2016, the petitioner states that it stood mentioned by him in the said daily diary that in the FIR in issue, he was pressurized not to write

anything against Head Constable Ashok Kumar whose involvement was found in the course of investigation. He reported in the said daily diary report

that he was called to the Chowki where he was made to attend a meeting with (a) IGCR, (b) Additional Superintendent of Police Shri Kulbhushan

Verma and (c) HC Ashok Kumar, PO Cell Mandi. IGCR made him and Head Constable Ashok Kumar sit together and instructed that nothing should

be written about HC Ashok Kumar in FIR No. 322 of 2016.

Thereafter on 16.03.2017, Superintendent of Police, Mandi, District Mandi, issued an order whereby, on the basis of report No. 20107, dated

16.03.2017 regarding irregularities observed in the daily diary register of Police Post City Mandi for the month of December, 2016, the petitioner was

placed under suspension vide Annexure P-2. Deputy Superintendent of Police, Sundernagar was appointed as Inquiry Officer, who vide charge sheet

dated 29.06.2018, Annexure P-3, framed the charges against the petitioner. The petitioner submitted response to the same. After completion of

inquiry, the report was submitted.

Vide communication dated 14.09.2018, respondent No. 3 sent the case file back to Superintendent of Police, Mandi by mentioning therein that in the

charge sheet dated 29.06.2018, the Inquiry officer had framed three charges against the petitioner. Out of them, Charge No. 3 pertained to removal of

page No. 10 from the daily diary of Police Post City Mandi dated 13.12.2016. The Inquiry Officer had submitted his findings only on charges No. 1

and 2 but had not given his findings on charge No. 3 against the petitioner. Copy of letter dated 14.09.2018 is appended with the petitioner as

Annexure P-4.

This was followed by issuance of order dated 10.05.2019 (Annexure P-5) by respondent No. 3, in which it was mentioned that since the trial of a

criminal case with regard to the FIR No. 64 of 2017, dated 16.03.2017, registered under Sections 167, 465, 468, 469, 471 and 201 of the Indian Penal

Code at Police Station Mandi against the petitioner on the same charges and upon completion of investigation, charge sheet stood presented before the

learned Trial Court on 08.10.2018, in view of the judgment passed by Hon’ble Supreme Court in Capt. M. Paul Anthony vs. Bharat Gold Mines

Ltd. And another, 1999, 3 SCC 679, as also the instructions circulated by Police Headquarters, the departmental inquiry initiated against the petitioner

was ordered to be kept in abeyance till the decision of the trial pending against the petitioner in FIR No. 64 of 2017 supra.

To his utter surprise and dismay, petitioner received a show cause notice dated 28.08.2019 (Annexure P-6), vide which he was called upon to

explain as to why he should not be dismissed from service on the basis of inquiry which was held against him, which incidentally earlier was ordered to

be put in abeyance by respondent No. 3 vide communication dated 10.05.2019. Petitioner submitted his response to the same vide Annexure P -7,

however, vide Annexure P-8 respondent No. 3 imposed penalty of reduction in rank upon the petitioner under Rule 87(2) (I) (d) of HP Police Act,

2007 with immediate effect. Feeling aggrieved, the petitioner has filed this writ petition for the grant of reliefs already enumerated by me hereinabove.

The petition stands resisted by the respondents inter alia on the ground that petitioner was posted as Incharge of Police Post, Mandi, District

Mandi, H.P. During this period, Superintendent of Police office Mandi, received a complaint submitted by one Suresh Thakur, resident of V.P.O.

Gutkar, Tehsil Sadar, District Mandi, with regard to fake registration of a vehicle. On the basis of said complaint, FIR No. 322 of 2016 was registered

and petitioner was called upon to carry out the investigation. In the course of investigation, he, i.e. the petitioner exercised powers beyond his limits,

and thus, violated the provisions of Punjab Police Rules, 1934.

According to the respondents, the petitioner without any reasons, on 13.12.2016, made entries against senior police officers in Daily Diary of

Police Post, City, Mandi, which act of his was considered as gross misconduct and indiscipline on the part of the petitioner. In view of this,

Superintendent of Police, District Mandi, initiated departmental inquiry in exercise of his administrative powers under Rules 14.7 and 22.50 of the

Punjab Police Rules, 1934.

Respondents have denied the allegation of the petitioner that he was pressurized by the police officer of a higher rank as alleged in the petition. It

is further the stand of the respondents that the inquiry was conducted by the Inquiry Officer by associating the petitioner and the final order stood

passed by the disciplinary authority as per procedure after giving opportunity to the petitioner by way of issuance of show cause notice.

With regard to subsequent proceedings undertaken by respondent No. 3 after the matter was put in abeyance by the respondents, the stand of the

respondents is that copy of the order dated 10.05.2019 was submitted by respondent No. 3 to the Director General of Police as also to Additional

Director General of Police, Armed Police & Training, H.P. Shimla.

The Inspector General of Police Armed Police & Training, H.P. being appellate authority, suo motu took cognizance of order dated 10.05.2019

and was pleased to set aside said order in exercise of powers vested in him under the H.P. Police Act.

Thereafter, respondents in compliance with the order of Inspector General of Police, Armed Police and Training, H.P. Shimla dated 28.06.2019,

issued a show cause notice dated 28.08.2019, on the basis of which, final order was passed by the competent authority after giving an opportunity of

being heard to the petitioner.

I have heard learned Counsel for the parties and gone through the pleadings as well as record of the case which was produced by the respondent-

department.

Before proceeding further, it is apt to observe at this stage that in the case of departmental inquiry, the scope of this Court in exercise of its

powers of judicial review is limited. Primarily, this Court interferes where there is any procedural lapse committed by the authorities concerned in the

mode and manner of holding the inquiry and thereafter in the mode and manner of awarding penalty to the delinquent employee, followed by

appeal/revision etc. The factual martix of the issue is generally not gone into by the Court until and unless the inquiry reveals glaring mistakes even on

facts.

Coming to the facts of this case. It is a matter of record that after the inquiry report was initially submitted by the inquiry officer to the disciplinary

authority, i.e. respondent No. 3, said authority in its wisdom vide office order dated 10.05.2019 (Annexure P-5), ordered the proceedings to be kept in

abeyance. It is necessary to quote the relevant text of the said order which reads as under:-

“Since the trial of criminal case registered against ASI Ram Lal on similar grounds is going on and keeping in view the decision of Hon’ble

Supreme Court of India in his decision dated 30.03.99, Capt. M. Paul Anthony V. Bharat Gold Mines Ltd and Another (1999, 3 SCC 679 )and as per

instructions circulated by PHHQ vide4 standing order Endst. No. DIV-III (D.E.) 2018-33354-84 dated 07.09.18, I hereby order that departmental

enquiry initiated against ASI Ram Lal vide S.P. Mandi office order Endst. No. 20155-62 dated 16.03.17 under Section 167, 465, 466, 468, 469, 471,

201 IPC PS Mandi registered against ASI Ram Lal.â€​

A perusal of the order demonstrates that copy thereof was inter alia forwarded to the petitioner also alongwith the report of the Inquiry Officer.

It is the case of the petitioner that without waiting for the outcome of the trial, out of blue, respondent No. 3 (who was now a new incumbent)

issued a show cause notice to him dated 28.08.2019 (Annexure P-6), as to why he should not be dismissed from service on the basis of inquiry which

stood held against him.

A perusal of the show cause notice demonstrates that there is nothing mentioned in the same as to why a U turn was taken by respondent No. 3

by issuing the show cause notice to the petitioner from the stand which was taken by said respondent in Annexure P-5 while ordering that the

departmental inquiry be kept in abeyance till the decision of the criminal case in FIR No. 64 of 2017. The show cause notice is in fact completely silent

in this regard.

The contents of the show cause notice are to the effect that upon completion of the departmental inquiry, the Inquiry Officer had submitted his

inquiry report to Superintendent of Police Mandi, who had forwarded the same to the author of the show cause of notice to take further action in the

matter. However, a perusal of the record of the case demonstrates that the things are not that simple. Factually what has happened is this that a copy

of order dated 10.05.2019 (Annexure P-5), was forwarded by respondent No. 3 to the office of Additional Director General of Police, Armed Police

& Training, Himachal Pradesh. The Inspector General of Police, Armed Police & Training, Himachal Pradesh, vide communication dated 28.06.2019

appended with the reply filed by the respondents as Annexure R-1, set at naught the order which was passed by the disciplinary authority (Annexure

P-5) by assigning the following reasons:-

“I have perused the departmental enquiry file alongwith relevant record. The criminal case FIR No. 64/17 has been registered in respect of

destruction of Daily Diary by ASI Ram Lal. Whereas the departmental enquiry was ordered against ASI Ram Lal for violation of PPR 14.7 (bar on

recording comments on the remarks made by a senior officer) and 22.50 (punishment for making false entry). Thus the charges in the Criminal

Proceedings and Departmental Proceedings are distinctly separate and exclusive. Bare reading the order of departmental enquiry would reveal that

the charges in the Departmental Enquiry are separate.

In view of Provisions contained in the para-7 of the Standing Order-2018 issued by Director General of Police, H.P. vide No. DIV-III (DE) 2018 -

33353 dated 07.09.2018 and above mentioned facts at Para-5, the order passed by the Commandant 1st IRBn. Bangarh vide order Endst. No.

OASI/16.2/19-14229-35 dated 10.05.2019 do not sustain and is set aside. The departmental enquiry against ASI Ram Lal may proceed further and be

taken to its logical end.â€​

At this stage, it is relevant to refer to the provisions of the Punjab Police Rules, 1934, as are applicable to the State of Himachal Pradesh, which

relate to the procedure to be followed in departmental enquiries. Relevant are Rule 16.24, which deal with the procedure to be followed in

departmental enquiries, Rule 16.28 which deals with powers to review proceedings and Rule 16.29 which deals with the right of appeal.

Rule 16.24 inter alia provides that after the Inquiry Officer completes the inquiry proceedings, then the Inquiring Officer shall proceed to pass an

order of acquittal or punishment, if empowered to do so, or to forward the case with his finding and recommendations to an officer having the

necessary powers. This is provided in Clause (vii) of Rule 16.24.

In this case, it was at this stage that the officer having necessary powers, i.e. respondent No. 3, ordered the departmental enquiry to be kept in

abeyance for reasons as stand assigned in order dated 10.05.2019 (Annexure P-5).

Rule 16.28 which deals with the power of review of the Inspector General of Police, Deputy Inspector General of Police and Superintendent of

Police, nowhere confers suo motu power upon said authorities to modify an order made in the interregnum passed by the disciplinary authority as was

done in this case of keeping in abeyance the departmental proceedings. It is not the case of the parties that office order dated 10.05.2019 (Annexure

P-5), vide which the disciplinary authority decided to keep the departmental proceedings in abeyance, was assailed by anyone before the appellate

authority. The appellate powers, which stand conferred upon the appellate authority under Rule 16.29, clearly contemplate that right to appeal shall lie

only against the orders of dismissal or reduction or stoppage of increment or forfeiture of approved service for increment. This Rule nowhere confers

upon the appellate authority the power to do the act which the appellate authority has done in the present case. In this background, the act of the

Inspector General of Police, Armed Police & Training, Himachal Pradesh, of setting at naught this order vide Annexure R-1, dated 28.06.2019 and

that too at the back of the petitioner, is void abinitio. This is for the reason that the Punjab Police Rules as are applicable to the State of Himachal

Pradesh do not enshrine upon the appellate authority the power of superintendence with regard to the proceedings being conducted by the disciplinary

authorities.

Not only, the order passed by the Inspector General of Police, Armed Police & Training, Himachal Pradesh, dated 28.06.2019 (Annexure R-1), is

void abinitio as I have already mentioned hereinabove, but the same also stood passed by flouting the principles of natural justice as it is the case of the

petitioner that this order was passed by the said authority without any notice to him and this contention of the petitioner could not be proved to be

incorrect by the respondents during the course of the arguments from the record. Assuming that the appellate authority was having the power to issue

order dated 28.06.2019, even then, the principles of natural justice required that the person likely to be affected from passing of the said order ought to

have been heard before any such order is passed. Even on facts, the order so passed by the appellate authority is bad. A perusal of the order passed

by the disciplinary authority Annexure P-5 demonstrates that the disciplinary authority had ordered the proceedings to be kept in abeyance pending

decision in criminal case which stood initiated on the basis of FIR in issue which was lodged against the petitioner and the allegations with regard to

which were also part of charges framed against the petitioner in the departmental inquiry, i.e. charge No. 3. To be more specific, charge No. 3 framed

against the petitioner in the departmental inquiry pertained to removal of page No. 10 from the daily diary of Police Post, Sadar, Mandi, dated

13.12.2016. FIR No. 64 of 2017, dated 16.03.2017, also pertained to the same offence. Yet the appellate authority while passing impugned order dated

28.06.2019 held that the charges in the criminal proceedings and departmental proceedings were distinct and separate, which in fact, is contrary to the

record. This Court reiterates that it is not affirming the act of the authority concerned of passing Annexure P-5, but in the absence of same having

been assailed before the appellate authority as per the procedural Rules in vogue, the appellate authority suo motu could not have had interfered with

the said order nor Annexure P-5 could have been set aside without hearing the petitioner. Therefore, also this order is not sustainable in the eyes of

law.

Now, but obvious, as the Show Cause notice (Annexure P-6) was issued thereafter by the new incumbent who was now occupying the office of

respondent No. 3, the same is also bad in law as its genesis was the order passed by the superior authority, i.e. Inspector General of Police, Armed

Police & Training, dated 28.06.2019 (Annexure R-1), which order is void abinitio, as has been held by me herein above. The subsequent award of

punishment vide Annexure P-8, which stands passed against the petitioner by respondent No. 3 is also void abinitio, and thus, not sustainable in law.

Accordingly, as this Court finds the proceedings, which have been initiated by respondent No. 3 vide show cause notice dated 28.08.2019

(Annexure P-6), as well as award of punishment conferred upon the petitioner vide order dated 21.10.2019 (Annexure P-8), as void abinitio and

without jurisdiction being passed on the basis of an order of superior authority, which was also without jurisdiction, the same was accordingly quashed

and set aside.

However, as the petition is being allowed on technical grounds, it is ordered that the authorities shall be at liberty to proceed with the matter at the

stage where it was when Annexure P-5 was passed, however, strictly in accordance with law and Rules occupying the field and by complying with

the principles of natural justice.

The writ petition is accordingly allowed in above terms. There is no order as to costs. Pending miscellaneous application(s), if any, also stand disposed

of accordingly.