R.S.A.No. 2070 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2070 of 2009 (O&M) Date of decision: 3.9.2009 Rattan Singh ......Appellant Versus State of Haryana and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. S.N.Yadav, Advocate, for the appellant. **** SABINA, J. Plaintiff Rattan Singh filed a suit for declaration, which was dismissed by the Civil Judge (Sr.Divn.) Bhiwani vide judgment and decree dated 8.8.2006. In appeal, the said judgment and decree were upheld by the Additional District Judge-III, Bhiwani vide judgment and decree dated 3.1.2009. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 6 of its judgment, are as under:- “2. The appellant/plaintiff has filed suit for R.S.A.No. 2070 of 2009 (O&M) 2 declaration against the defendants/respondents on the allegations that the order dated 12.6.1999, passed by defendant No.4 by virtue of which, two annual increments with permanent effect of the plaintiff were stopped; the order dated 29.12.1999, passed by defendant No.3 and the order dated 28.8.2000 passed by defendant No.2, order dated 6.8.2001 passed by defendant No.1, by virtue of which appeal and the mercy appeal filed by the plaintiff stands rejected and order dated 22.11.1999, passed by defendant No.3 by virtue of which the promotion order dated 18.11.1999 of the plaintiff has been withdrawn, are wrong, illegal, unjustified, against the principle of natural justice and services rules, therefore, not binding upon the plaintiff. Consequential relief has also been sought to the effect that the defendants be directed to withdraw the aforesaid orders and to promote the plaintiff w.e.f. 18.11.1999 and to release the arrears of pay and allowances with interest at the rate of 18% per annum. 3. It is pleaded in the plaint that plaintiff was recruited as Constable on 26.11.1979 and after completion of satisfactory training, he was posted as Constable at 3rd Bn. H.A.P. He was promoted to the rank of HC vide order dated 18.11.1999, by defendant No.3 which was subsequently withdrawn vide order R.S.A.No. 2070 of 2009 (O&M) 3 dated 22.11.1999 by defendant No.3. After that the plaintiff was promoted to the rank of HC with effect from 6.8.2000. Defendant No.4, vide his order dated 12.6.1999, inflicted the punishment of stoppage of two annual increments of the plaintiff with permanent effect on the basis of false and fabricated allegations of consuming alcohol and mis behaviour with ASI. Plaintiff filed an appeal against the above said order dated 12.6.1999 to the IGP, Hisar Range Hisar, defendant No.3, which was dismissed vide order dated 29.12.1999 unilaterally and arbitrarily. Aggrieved from the said order in the appeal, plaintiff filed revision petition against the impugned order dated 29.12.1999 to defendant No.2 DGP, Haryana, which was also rejected vide order dated 28.8.2000. Plaintiff also filed a mercy appeal to defendant No.1, which was dismissed by defendant No.1 vide order dated 6.8.2001, conveyed vide order dated 11.8.2001 by defendant No.4. The order dated 12.6.1999, passed by defendant No.4, order dated 29.12.1999 passed by defendant No.3 dismissing the appeal of the plaintiff and order dated 28.8.2000 passed by defendant No.2 in revision petition and order dated 22.11.1999 passed by defendant No.3, in relation of withdrawal of the R.S.A.No. 2070 of 2009 (O&M) 4 promotion order dated 18.11.1999 and order dated 6.8.2001 conveyed vide order dated 11.8.2001, are wrong, illegal, unjustified, against the principle of natural justice and service rules on the grounds that there is no evidence against the plaintiff. He was medico legally examined by the Medical Officer, General Hospital, Chautala vide MLR dated 13.9.1996. The concerned medical officer/Doctor opined that the plaintiff was not under the effect of alcohol. The above said contention of the plaintiff is further supported by the order dated 7.4.1998 passed by Judicial Magistrate, Dabwali in case FIR No.306 dated 13.9.1996 under Section 61 of the Excise Act, vide which the learned Magistrate has not found the case of the prosecution, even sufficient to frame charge against the plaintiff and has discharged the plaintiff from the criminal case. It is further admitted that all the witnesses of the prosecution and the defence recorded in the departmental enquiry, PW-5 ASI Suraj Bhan, DW-1 Constable Baljit Singh No.373 and DW-2 Constable Om Parkash No.76 are the material witnesses and from the perusal of their testimonies and the departmental enquiry, it has been proved that the plaintiff had not taken any liquor and he had not created any nuisance R.S.A.No. 2070 of 2009 (O&M) 5 in the Sikara Tourist Complex, where he was deputed on temporary duty in Reserve Force Protection Gurard. 4. It is next pleaded that the allegations of the departmental enquiry and the criminal case are similar and the same. Plaintiff had requested the police authorities not to start the departmental enquiry till the decision of the criminal case, but the said request of the plaintiff was turned down by the punishing authority i.e. defendant No.4. Thereafter, defendant No.4 served a show cause notice to the plaintiff on 11.3.1999 with the finding of the enquiry officer dated 12.2.1997 i.e. after about more than two years and that too is after producing the order dated 7.4.1998 of the Judicial Magistrate Ist Class, Dabwali. The Enquiry Officer has not conducted the enquiry in a proper and fair manner and the punishing authority has also violated the mandatory provisions of Rule 16.38 of the Punjab Police Rules and grossly erred in interpreting and appreciating the prosecution and defence evidence in departmental enquiry. The punishment inflicted upon the plaintiff is also disproportionate to the quantum of misconduct as alleged. The punishing authority has not considered the previous unblemished service period of 20 years of the plaintiff before inflicting the R.S.A.No. 2070 of 2009 (O&M) 6 punishment. 5. Further, it is admitted that defendant No.3 vide order dated 18.11.1999 along with other 121 officials of Hisar Range, promoted the plaintiff as HC and his name stands at serial No. 19 of the promotion list, however, the promotion order with regard to the plaintiff was withdrawn by defendant No.3 vide order dated 22.11.1999 on the basis that a major penalty has been imposed upon the plaintiff. Thus, at least more than 100 officials juniors to the plaintiff, have been promoted to the rank of HC. During the period of suspension as non duty period and dis entitling the plaintiff for any benefit of the said period will certainly amount double jeopardize to the plaintiff and has been punished twice for a single act of misconduct. Plaintiff requested the defendants many a times to withdraw the aforesaid orders and to restore his two annual increments, to release the arrears of pay and allowances and to promote the plaintiff as HC w.e.f. 18.11.1999 along with all benefits and to release the arrears of pay and allowances accrued there from, but in vain. Ultimately, plaintiff got served a legal notice under Section 80 of the CPC upon defendants on 12.8.2002, through his counsel Sh.Chetan Anand, Advocate for grant of above R.S.A.No. 2070 of 2009 (O&M) 7 said relief, but the defendants did not reply the same, which shows the refusal of the defendants to admit the claim of the plaintiff. Hence, necessity arose to file the present suit. 6. Upon notice, defendants appeared and filed their joint written statement, wherein, certain preliminary objection regarding cause of action and maintainability of the suit have been taken and it is pleaded that on 13.9.1996, the plaintiff was deputed over VVIP duty and was assigned duty in protection guard at Sikra Tourist Complex Asha Khera (Sirsa) where on 13.9.1996, at 12.00 midnight, the plaintiff was detected by ASI Suraj Bhan, In-charge Police Post Chautala, under the influence of liquor and creating nuisance. An FIR No.306 dated 13.9.1996 under Section 61 of the Excise Act was registered against the plaintiff at Police Station, Sadar Dabwani and the plaintiff was arrested. Plaintiff committed grave misconduct and a departmental enquiry was initiated against him. The enquiry officer submitted his findings and defendant No.4 issued a show cause notice, which was replied by the plaintiff. Though, the plaintiff was personally heard and vide order dated 12.6.1999, defendant No.4, awarded punishment of stoppage of R.S.A.No. 2070 of 2009 (O&M) 8 two future annual increments with permanent effect to the plaintiff, after considering the length of service of the plaintiff. The orders dated 12.6.1999, 29.12.1999 and 28.8.2000 are legal. The order dated 12.6.1999 was passed on the basis of the evidence against the plaintiff. Defendant No.4 has already taken a lenient view and considered the length of the service of the plaintiff while passing order dated 12.6.1999. Even as per MLR dated 13.9.1996, the plaintiff has consumed alcohol but he was not under its toxic effect. Order dated 7.4.1998 passed by the Judicial Magistrate, in case FIR No.306 is not relevant regarding the misconduct of the plaintiff as charges of enquiry and criminal trial were not similar. From the statements of witnesses and the MLR it is proved that plaintiff was under the influence of liquor and was creating nuisance on 13.9.1996 while on duty. The plaintiff was given opportunity to defend his case and he has cross- examined the departmental witnesses and also led defence evidence. All the remaining allegations of the plaintiff are denied categorically and a prayer was made for dismissal of the suit with costs.” On the pleadings of the parties, following issues were framed by the trial Court:- R.S.A.No. 2070 of 2009 (O&M) 9 “1. Whether the order dated 12.6.1999 passed by defendant No.4, order dated 29.2.1999 passed by defendant No.3 order dated 28.8.2000 passed by defendant No.2 and order dated 6.8.2001, passed by defendant No.1 are illegal, null and void, as alleged? OPP 2. Whether the plaintiff is entitled to promotion as alleged? OPP 3. Whether the plaintiff is entitled to release the arrears of pay allowances with interest at the rate of 18% per annum, as alleged? OPP 4. Whether the suit is not maintainable in the present form? OPD 5. Relief. ” After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff joined service of the defendants as a Constable on 26.11.1979 and was thereafter promoted as a Head Constable vide order dated 18.11.1999. The said order was withdrawn vide order dated 22.11.1999 and thereafter, plaintiff was again promoted to the rank of Head Constable w.e.f. 6.8.2000. Two annual increments of the plaintiff were, however, stopped with permanent effect. The allegation against the plaintiff was that while on VVIP duty, he consumed liquor. During the course of arguments, learned counsel for the R.S.A.No. 2070 of 2009 (O&M) 10 appellant has submitted that since the plaintiff had been discharged in the criminal proceedings, he was liable to be exonerated in the departmental proceedings also. There is no force in the argument raised by learned counsel for the appellant. Decision given in the criminal proceedings is not binding on the departmental proceedings as the degree of proof required in both the cases is different. In the departmental proceedings the charges levelled against the plaintiff stood duly proved and hence, a lenient view was taken and two annual increments of the plaintiff were stopped with permanent effect and it was further ordered that the period of suspension be treated as non duty period. The appellant being a police man is working in a disciplined force and cannot indulge in drinking while on duty despite prohibition of liquor in the State of Haryana at the relevant time. Learned counsel for the appellant has further submitted that the inquiry was invalid being in contravention of Rule 16.38 of the Punjab Police Rules, 1934 (for short 'the Rules'). Rule 16.38 (1) as reproduced in the grounds of appeal reads as under:- “Criminal offences by police officers and strictures by courts-procedure regarding- 1. Where a preliminary enquiry of investigation into a complaint alleging the commission by an enrolled police officer of a criminal offence in connection with his official relations with the public, establishes a prima facie case, a judicial prosecution shall normally follow. Where, R.S.A.No. 2070 of 2009 (O&M) 11 however, the Superintendent of Police proposes to proceed in the case departmentally, the concurrence of the District Magistrate shall be obtained.” In support of his arguments, learned counsel for the appellant has placed reliance on the decision of the Apex Court in Delhi Administration v. Chanan Shah, 1969 SLR 217. Rule 16.38 of the Rules is attracted in cases of a complaint received by Superintendent of Police indicating the commission of the criminal offence by a Police Officer in connection with his official duties with the public. However, in the present case the complaint was made by the Incharge, Police Post Chautala and not by any public person. The plaintiff was found under the influence of liquor while on VVIP duty at Sikara Tourist Complex Asha Khera (Sirsa) during the visit of Prime Minister of India by the In-charge, Police Post Chautala. He was creating nuisance at that time. A case under Section 61 of the Excise Act was also registered against the plaintiff. In these circumstances, Rule 16.38 of the Rules had no application. Moreover, the question as to whether Rule 16.38 of the Rules is mandatory or directory was left open by the Apex Court in Delhi Administration's case (supra). Learned counsel for the appellant has failed to point out any violation of principles of natural justice during the course of departmental enquiry. The charge levelled against the plaintiff was held to be proved in the departmental proceedings. Moreover, only R.S.A.No. 2070 of 2009 (O&M) 12 two increments of the plaintiff have been ordered to be stopped with cumulative effect. Keeping in view the factual matrix of this case, the Courts below had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE September 03, 2009 anita