IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 23324 of 2011 Date of Decision: 15.12.2011. Ashok Kumar --Petitioner Versus Union of India & others --Respondents CORAM:- HON'BLE MR.JUSTICE RAJIVE BHALLA. HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA. Present:- Mr. N.S. Bains, Advocate for the petitioner. *** TEJINDER SINGH DHINDSA.J The petitioner, who is working on the post of Head Constable at U.T. Chandigarh was inflicted the penalty of stoppage of four increments with permanent effect vide order dated 15.5.2008. Such order was upheld by the appellate as well as the revisional authorities. The petitioner impugned the order of penalty of imposition of stoppage of four increments with permanent effect in terms of filing Original Application No. 541-CH- 2010 in the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (herein after referred to as the Tribunal). The Tribunal vide impugned order dated 7.6.2011 has dismissed the Original Application. Resultantly, the present writ petition. A complaint was filed by one Ms. Mamta Sharma alleging that the petitioner had married her still keeping her in the dark that he was already married. On the basis of such complaint a preliminary inquiry was held, which was followed in terms of initiating a regular departmental inquiry under Rule 16.24 of the Punjab Police Rules. The petitioner was served with a charge sheet, his reply was considered and an Inquiry Officer CWP No. 23324 of 2011 -2- was appointed to conduct a regular inquiry. The Inquiry Officer furnished a report, wherein the allegation of second marriage could not be proved beyond doubt but the petitioner was held guilty of the charge of having extra marital relations with the complainant. Accordingly, on 12.2.2008 a show cause notice was served upon the petitioner to show cause as to why the extreme penalty of dismissal from service be not imposed upon him. The petitioner submitted his reply to the show cause notice and the disciplinary authority upon considering the same imposed the punishment of stoppage of four increments with permanent effect by reducing the proposed punishment which was for dismissal from service. The petitioner availed of his statutory remedies in terms of filing an appeal as also the revision, wherein the punishment of stoppage of four increments with permanent effect was affirmed. Vide impugned order dated 7.6.2011 the Tribunal has found no infirmity in the order of penalty passed against the petitioner and has accordingly dismissed the Original Application. We have heard learned counsel for the petitioner and perused the paper book. It has been sought to be contended before us that the order of penalty has been imposed by the disciplinary authority without any application of mind. It has also been argued that grave prejudice has been caused to the petitioner in as much as the proposed punishment of dismissal from service was mentioned in the show cause notice itself, which was indicative of the pre-determined mind of the disciplinary authority. Violation of the principles of natural justice while imposing the order of punishment of stoppage of four increments with permanent effect has also CWP No. 23324 of 2011 -3- been alleged. We have considered the submissions made by learned counsel appearing for the petitioner. In pursuance to a regular departmental inquiry, wherein the Inquiry Officer has examined the entire evidence, recorded the statements of witnesses, a clear finding has been returned against the petitioner of having maintained extra marital relations with another lady. Such findings recorded by the Inquiry Officer have not been assailed by the petitioner at any point of time. Rule 16.24 of the Punjab Police Rules provides a detailed procedure as regards holding of a regular departmental inquiry prior to the imposition of a major penalty. No procedural irregularity has been pointed out in the conduct of the inquiry and the findings returned thereupon. The order imposing the penalty of stoppage of four increments with permanent effect dated 15.5.2008 is a detailed and speaking order. The petitioner was also afforded an opportunity of personal hearing by the disciplinary authority. The submission on behalf of the petitioner is to the effect that the show cause notice itself indicated the proposed penalty and accordingly was reflective of the pre-determined mind, is also without any merit. Rule 16.24 (ix) mandates that no order of dismissal or reduction in rank shall be passed by an officer empowered to dismiss a police officer or of reducing rank until that officer has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. As such the show cause notice dated 20.2.2008 was in terms of the mandate of the statutory rule. Rule 16.24 of the Punjab Police Rules and the procedure regarding holding of a regular departmental inquiry, issuance of a show cause notice etc. came up for consideration before a Division Bench of this CWP No. 23324 of 2011 -4- Court in case of Union Territory, Chandigarh Vs. Central Administrative Tribunal, Chandigarh Bench Chandigarh and another reported as 2010 (4) S.C.T. 800 and the following observations would be most relevant:- “7. Having heard learned counsel for the parties and perusing the record, we are of the considered viw that the Tribunal has not acted in accordance with law. It is admitted position that Rule 16.24 of the Rules is applicable. According to Rule 16.24 of the Rules, a detailed procedure for holding departmental inquiries has been provided. According to clause (iii) of Rule 16.24 of the Rules, the officer conducting the inquiry is required to record evidence oral or documentary in proof of the accusation to support the charge in case the delinquent police officer has not admitted the misconduct. The Enquiry Officer has been given wide powers and a detailed procedure has been provided by clauses (iv), (v) and (vi) of Rule 16.24 (1) of the Rules. After the conclusion of inquiry, if the Enquiry Officer is not empowered to pass order of punishment then he is required to forward the case with his findings and recommendation to an officer having necessary power. Further, detail procedure has been provided in clauses (vii), (viii) and (ix) of Rule 16.24 (1) of the Rules, which being relevant to the controversy in hand, are reproduced as under:- “16.24. Procedure in departmental enquiries-(1) The following procedure shall be followed in departmental enquiries:- (i) to (vi)xxx xxx xxx (vii) The enquiry officer shall be proceed to pass orders 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. Whenever the officer passing the orders of punishment proposes to take into consideration the adverse entries on the previous record of the accused police CWP No. 23324 of 2011 -5- officer, he shall provide reasonable opportunity to the defaulter to defend himself; and a copy or at least a gist of those entries shall be conveyed to the defaulter and he shall be asked to give such explanation as he may deem fit. The explanation furnished by the defaulter shall be taken into account by the officer before passing orders in the case. (viii) Nothing in the foregoing rule shall debar a Superintendent of Police from making or causing to be made a preliminary investigation into the conduct of a suspected officer. Such an enquiry is not infrequently necessary to ascertain the nature and degree of misconduct which is to be formally enquired into. The suspected police officer may or may not be present at such preliminary enquiry, as ordered by the Superintendent of Police or other gazetted officer initiating the investigation, but shall not cross-examine witnesses. The file of such a preliminary investigation shall form no part of the formal departmental record, but statements therefrom may be brought to the formal record when the witnesses are no longer available in the circumstances detailed in clause (iii) above. All statements recorded during a preliminary investigation should be signed by the person making them and attested by the officer recording them. (ix) No order of dismissal or reduction in rank shall be passed by an officer empowered to dismiss a police officer or reduce him in rank until that officer has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, provided that this shall not apply- (a) where a police officer is dismissed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge; or (b) where the officer empowered to dismiss him or reduce him in rank is satisfied that for some reason to be recorded by that officer in writing, it is not reasonably practicable to give to that police officer an opportunity of showing cause. CWP No. 23324 of 2011 -6- Before an order of dismissal or reduction in rank is passed, the officer to be punished shall be produced before the officer empowered to punish him, and shall be informed of the charges proved against him, and called upon to show cause why an order of dismissal or reduction in rank should not be passed. Any representation that he may make shall be recorded, shall form part of the record of the case, and shall be taken into consideration by the officer empowered to punish him before the final order is passed. Provided that if, owing to the complicated natue of the case or other sufficient reason to be recorded, the officer empowered to impose the punishment considers this procedure inappropriate, he may inform the officer to be punished in writing of the charges proved against him, and call upon him to show cause in writing why an order of dismissal or reduction in rank should not be passed. Any written representation received shall be placed on the record of the case and taken into consideration before the final order is passed.” 8. A perusal of the aforesaid Rule shows that after the Enquiry Officer has submitted his report to the punishing authority then the delinquent officer is required to be given a reasonable opportunity to defend himself. The constitutional mandate has also been followed in the Rules that the order of dismissal or reduction in rank shall not be passed until the delinquent officer has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. According to proviso to Article 311 (2) of the Constitution, if after a regular departmental inquiry the punishing authority proposed to impose upon a delinquent employee any such penalty on the basis of evidence adduced during such inquiry then the same can be imposed and it is not necessary to give such an employee an opportunity of making representation on the penalty proposed.” CWP No. 23324 of 2011 -7- The petitioner is a member of a disciplined police force. There is a clear finding of moral turpitude against him. The authorities concerned could have well taken a view that in view of the inquiry findings the petitioner was guilty of the “gravest act of conduct” and which in turn could have entailed even a higher penalty of dismissal from service. The proposed penalty in terms of the show cause notice was for dismissal from service. The petitioner in fact has been let off lightly in terms of imposition of a penalty of stoppage of four increments on a permanent basis. We find no infirmity in the imposition of penalty of stoppage of four increments with permanent effect and accordingly uphold the impugned order dated 7.6.2011 passed by the Tribunal in O.A. No. 541-CH- 2010. This petition is, accordingly, dismissed. (RAJIVE BHALLA) (TEJINDER SINGH DHINDSA) JUDGE JUDGE 15.12.2011. lucky