CIVIL WRIT PETITION NO.2413 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 28 ,2011 Const.Kulbir Singh .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. S. N. Yadav, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner has impugned his dismissal from service as ordered by respondent No.4 on 26.2.2007. Since the appeal and revision filed against this order were also dismissed, the petitioner has impugned those orders as well. Having been enrolled as Constable on 31.8.2000, the petitioner was posted as Constable at Police Station, Ambala Cantt. in July 2006. One lady Constable, Surinder Kaur, came to the police station on 17.7.2006 as 5 ladies were arrested for being involved in chain snatching. Constable Surinder Kaur had been deputed for CIVIL WRIT PETITION NO.2413 OF 2008 :{ 2 }: vigilance on the ladies. SHO asked Surinder Kaur to go to the bathroom, where these ladies had gone and spent some time in order to see if they had thrown something in the bathroom or to see if something was concealed in the toilet. The petitioner was detailed to accompany the lady Constable. As per the petitioner, he happened to innocently touch the lady constable shoulder once or twice while she was in the search of the concealed items. Constable Surinder Kaur accordingly made an allegation of teasing against the petitioner. On the basis of a complaint, FIR No.197 was registered under Section 354 IPC on 19.7.2006. The petitioner was placed under suspension on 21.7.2006. Superintendent of Police also ordered a regular departmental enquiry against him and Balbir Singh, DSP, was detailed as Enquiry Officer. Enquiry Officer examined as many as six witnesses, where Constable Surinder Kaur also appeared and made statement. The complainant lady, however, did not support the allegation and resiled from her earlier statement. The complainant- lady Constable then testified that there was darkness in the bathroom and the petitioner's shoulder happened to touch her by mistake. The complainant categorically stated that this was not intentionally done and she did not want to pursue her complaint against the petitioner. While explaining the reason for registering the FIR, lady Constable stated that she was misguided by somebody. The petitioner accordingly pleads that once the complainant has resiled, then there is no evidence or material in support of the allegation and, thus, it is a case of no evidence. As per the record, none else was present at the time of CIVIL WRIT PETITION NO.2413 OF 2008 :{ 3 }: incident and other witnesses examined were not the witnesses to the incident but had appeared to narrate the link evidence only. Once the complainant has turned hostile and not supported the allegation, it would be a case of no evidence. To further substantiate his plea, the petitioner would point out that he has since been acquitted in criminal case as well. The Enquiry Officer still, by stretched reasoning, held the petitioner guilty ultimately leading to the order of dismissal. The petitioner has, thus, filed this petition to impugn the order of dismissal on the ground that it is a case of no evidence and that he has been punished without any justification or evidence. A common written statement has been filed on behalf of respondent Nos.1 to 5. As per the respondents, the petitioner was involved in case of teasing a lady Constable, which is a serious act of misconduct, for which a departmental enquiry was held against him. The respondents would justify the punishment as well as the order whereby his appeal and revision were rejected. It is also highlighted that a criminal case was registered against him. It is denied if this act, as alleged, was committed by way of a mistake. It is pointed out that the act was done twice, which showed malafide intention of the petitioner. Respondents have stated that the petitioner has won over the complainant, though it is not disputed that she has not supported the allegations. Learned counsel for the petitioner has challenged the order on a sole ground that finding is based on no evidence. The jurisdiction of the writ Court to interfere while exercising judicial review by now is well settled. Though the writ Court can not CIVIL WRIT PETITION NO.2413 OF 2008 :{ 4 }: competently appreciate or re-appreciate the evidence but the Court can certainly examine if the allegations are supported by any evidence or material. If the finding and the punishment is based on no evidence at all, then it can be said that the finding as well as punishment would appear to be perverse and, thus, amenable to the judicial review. Analyzing the case in this background, it can be noticed that the only relevant material or evidence, which could have been available in this case and was available, would be that of the complainant. Complainant-Lady Constable was examined as PW6. Whether her statement, in any manner, would go to support the allegations, can be seen from the statement as such and it would be appropriate to reproduce her entire version:- “Lady Constable Surinder Kaur No.1239/Ambala had written in the statement that on 17.07.2006 I alongwith Lady A.S. Inspector Balvinder Kaur and other lady constables went on duty to Police Station Hathi Khana Mandir Housing Board, Ambala Cant. Fair was going on that day and five ladies were caught by police in suspecting of chain snatching case and about 10.30 PM, I and lady constable Balwinder Kaur came to Police Station, Ambala Cantt. alongwith that five ladies who were caught by police. After some time Duty Officer Suresh Chand said that these ladies had gone to toilet for urinating which came after a long time. Go to the toilet and search that they may not have dropped the stolen gold chain there. Lady A.S. Inspector said to me and by CIVIL WRIT PETITION NO.2413 OF 2008 :{ 5 }: her order I went to the toilet for checking and Constable Kulbir Singh was also sent with me alongwith Battery. There was very darkness in the toilet and space was very narrow in the toilet; during checking his shoulder was touched to my body one or twice. I thought, he is doing deliberately with me and got feared and told incident in the room of Mohrar. I was so feared that I was unable to understand. Next day I told incident to lady constables and they advised me to appear before Superintendent of Police. Complaint No.197 dated 19.07.2006 Section 354 was registered in the Police Station, Ambala Cant against the Constable. After some time I realized that this constable did not commit this offence deliberately, this is only due to darkness in the toilet and narrow place of toilet and colleague lady constables did not guide me properly. Constable Kulbir Singh No.494/Ambala is innocent. I had given statement without anybody pressure and whichever I had heard is correct.” The witness has answered in the negative in response to question by the Enquiry Officer if she had made statement under any pressure. The witness rather replied that she was misled. The version of the complainant, thus, would clearly prove that there is no evidence or material, which could have formed the basis of recording a finding of guilt against the petitioner for the allegations made. Other five witnesses examined during enquiry did not give any evidence regarding the incident. Witness No.1 only stated that the petitioner, after suspension, was posted at Police Line, CIVIL WRIT PETITION NO.2413 OF 2008 :{ 6 }: Ambala. Witness No.2, Head Constable has produced the character roll of the petitioner, which had three good remarks but no adverse remark. He had only recognized the signatures of Superintendent of Police. Third witness was a Head Constable, who had produced the FIR and admitted the fact that the petitioner was arrested. As per his version, the case was pending against the petitioner. Fourth witness was SHO, Police Station Ambala Cantt., who has only stated that the complainant lady was asked to search. Since this could be done with the help of light, which was heavy, the petitioner was sent with the search light, when the lady Constable had complained of having been teased by the petitioner. Witness No.5 had produced the special report, which was prepared in regard to the incident. This report was only based on the statement of the complainant. There is even an evidence to show that the petitioner had told the SHO that a lady Constable be sent with the complainant for search of bathroom, which could not be done as search light was heavy. There is, thus, no evidence other than that of the complainant lady, which could have proved the allegation made against the petitioner. The petitioner had even produced two defence witnesses in support of his defence that no such incident came to their notice. On the face of this evidence, it is reasonable to hold that there is no evidence on the basis of which it is possible to hold that the allegations were established. Still, the Enquiry Officer found the petitioner guilty with which the Punishing Authority had agreed and issued show cause notice to the petitioner. No doubt, the order passed by the Punishing Authority is elaborate and detailed one, but primarily it has made mention in detail to the evidence that was CIVIL WRIT PETITION NO.2413 OF 2008 :{ 7 }: recorded and has passed an order dismissing the petitioner from service. No doubt, if the allegations, as made against the petitioner were established, then the punishment imposed on the petitioner would be just. At the time time, if the finding is recorded on the basis of no material or evidence, then it may not be fair to punish an employee. I am conscious of this fact that even if there is a material or evidence, which links the petitioner with the allegation, then sufficiency thereof can not be gone into by this Court. I have considered the entire evidence very deeply and have not been able to find any material or evidence, which can help reaching a conclusion that the allegations against the petitioner are established. Undoubtedly, this is a case of no evidence and, thus, the finding of guilt recorded by the Enquiry Officer and the punishment imposed on the basis thereof can not be sustained. The writ petition is accordingly allowed. The order of dismissal dated 26.2.2007, Annexure P-6, as well as the subsequent order dated 10.5.2007, Annexures P-8, passed in appeal and order dated 4.1.2008, Annexure P-10, passed in revision are all set-aside. Since the petitioner has not worked for all these years and to balance the equities between the parties, he is held entitled to 50% of the back wages for the period he has remained out of service. September 28,2011 ( RANJIT SINGH ) khurmi JUDGE