RSA 1113 of 1994 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on December 16,2009. The Punjab State through the Secretary to Government of Punjab, Chandigarh and others --Appellants vs. Lachhman Singh, Ex-Constable --Respondent. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mrs.Rajni Gupta,Addl.A.G, Punjab, for the appellants Mr.Vivek Goel,Advocate,for the respondent. Rakesh Kumar Jain, J: This second appeal preferred by the defendants is directed against the judgment and decree of both the Courts below by which the suit filed by the plaintiff for declaration was decreed. In brief, the plaintiff filed a suit for declaration to the effect that order of dismissal from service passed by Senior Superintendent of Police, Patiala, dated 29.4.1985, order of dismissal of appeal by Deputy Inspector General of Police, PAP, Patiala Range,Patiala, dated 21.9.1985 and order of Inspector General of Police, Punjab, Chandigarh, dismissing his revision vide order dated 06.5.1986, are illegal and void being against the services rules. RSA 1113 of 1994 (O&M) 2 It is alleged in the plaint that the plaintiff had joined in Punjab Police as a Constable on 15.2.1974 at Ropar and after completing his recruitment course, he was posted in District Police Force, Sangrur in the year 1978 and in District Police Force Patiala in the year 1984. In the month of April, 1984, he was posted in Police Station, Malerkotla. On 09.4.1984 at about 11.30 a.m, he was deputed for Mela duty at village Lossoi in the police party headed by Head Constable Harbhajan Singh. One Balwinder Kumar and Darbara Singh of village Lossoi were at loggers head and had an altercation on that day and in order to scare away the quarreling parties, he (plaintiff) is alleged to have fired in air which incident was enquired into by S.H.O, Malerkotla, who found him guilty and on the basis thereof, he was proceeded against departmentally on the allegation that while on duty, he took liquor and went to the house of Darshan Singh and fired from his service rifle in front of the house of Balwinder Kumar. It was alleged that he misbehaved with the Head Constable of the guard on the following morning. The Deputy Superintendent of Police, Sangrur, also conducted enquiry against him and found him guilty on 10.4.1984, but in the meantime, he was transferred to District Police Force, Patiala and his enquiry papers were sent to S.S.P.Patiala , who issued him a show cause notice of dismissal, to which the plaintiff had submitted his detailed reply. But vide his order dated 29.4.1985, S.S.P.Patiala, dismissed him from service. The plaintiff filed appeal against the order of dismissal which was dismissed by the D.I.G., PAP, Patiala, vide his order which was received on 21.9.1985 and revision filed against that order, was dismissed by Inspector General of Police, Punjab, vide his order dated 06.5.1986. RSA 1113 of 1994 (O&M) 3 In the written statement, the defendants had challenged the territorial jurisdiction of the Court and had also alleged that the plaintiff was awarded two major punishments, five censures and two warnings. In addition to that, he absented himself from duty ten times during his service career. It was alleged that the enquiry has been conducted in accordance with rules and the orders passed by the competent authority are perfect and valid. Replication was filed by the plaintiff, on the basis of which the following issues were framed :- 1.Whether the impugned orders as detailed in the head notice of the plaint are void, unlawful, arbitrary etc? OPP 2.Whether the plaintiff is entitled to declaration prayed for? OPP 3.Whether the Civil Court at Jalandhar has jurisdiction to entertain and try the present suit? OPP 4.Whether the plaintiff had served a valid and legal notice U/s 80 CPC before filing the present suit? OPP 5.Whether the suit is not maintainable? OPP 6.Whether the suit is bad for non-joinder of necessary parties? OPP 7.Relief. The learned trial Court decided issue Nos. 1 and 2 together in favour of the plaintiff in which it was held that the enquiry has been conducted in violation of Rules 16.38 of the Punjab Police Rules,1934, (for short' the Rules'). RSA 1113 of 1994 (O&M) 4 Both the Courts below have given concurrent findings in this regard, but still aggrieved, the State of Punjab, has filed the present appeal which was admitted on 18.8.1994. Though in the grounds of appeal, no substantial question of law has been framed, yet learned counsel for the appellants has submitted that there is no necessity of informing the District Magistrate, about the misconduct of the police official as Rule 16.38 of the Rules is directory and not mandatory. On the other hand, learned counsel for the respondent has argued that Rule 16.38 of the Rules is mandatory in nature and any violation thereof would vitiate the order of dismissal. He relied upon two decisions of the Apex Court in the case of Delhi Administration Vs. Chanan Singh (SC) 1969 S.L.R. 217 and Union of India Vs. Ram Kishan AIR 1971 Supreme Court 1403. I have heard learned counsel for the parties and have perused the record with their assistance. Before adverting to the legal submissions made by learned counsel for the parties, the question raised by the learned counsel for the appellants in this case is as to “whether Rules 16.38 of the Rules are directory or mandatory and whether a police official can be dismissed from service without informing the District Magistrate about the complaint against him and without obtaining his decision about the investigation”. Before adverting to the answer given to this question by the learned counsel for the parties, it is worth-while to refer to the provisions of Rules 16.38 of the Rules which read thus:- 16.38. Criminal offences by police officers and strictures by courts procedure regarding. (1) Immediate information shall be given to the RSA 1113 of 1994 (O&M) 5 District Magistrate of any complaint received by the Superintendent of Police, which indicates the commission by the police officer of a criminal offence in connection with his official relations with a public. The District Magistrate will decided whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected (Executive Magistrate) (2) When investigation of such a complaint establishes a prima facie case, a judicial prosecution shall normally follow; the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded. When it is decided to proceed departmentally the procedure prescribed in rule 16.24 shall be followed. An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed. (3) Ordinarily a Magistrate before whom a complaint against a police officer is laid proceeds at once to judicial enquiry. He is, however, required to report details of the case to the District Magistrate, who will forward a copy of this report to the Superintendent of Police. The District Magistrate himself will similarly send a report to the Superintendent of Police in cases of which he himself takes cognizance. (4) The Local Government has prescribed the following supplementary procedure to be adopted in the case of complaints against police officers in those districts where abuses of the law with the object of victimizing such officers or hampering investigation is rife. The District magistrate will order that all petitions against police officers shall be presented to him personally. If he considered that these petitions are of a frivolous or factious nature, it is within his discretion to take no action on them. When RSA 1113 of 1994 (O&M) 6 he considers an enquiry to be necessary he will use his discretion whether to send the papers to the Superintendent of Police or to a Magistrate for judicial enquiry. In the case of formal criminal complaints, the District Magistrate will arrange for all cases to be transferred from other courts of his own. (5) Orders have been issued by the Hon’ble Judges of the High Court making it obligatory on all civil and criminal courts, whenever they make strictures on the personal character of professional conduct of a police officer, to send a copy of the judgment to the executive authorities. In case of the High Court itself the copies will be forwarded to the Local Government. In the case of all other courts (including Courts of Sessions), the copies will be sent by the Judges and Magistrates concerned to the District Magistrate. (6) In cases in which strictures are passed on the conduct of the police by a Sessions Court or by a Magistrates Court and no specific recommendation is made by the Court making such strictures that an enquiry should be made, the District Magistrate will decided whether the investigation into the matter is necessary, and if so, whether it shall be conducted by a police officer or by a selected (Executive Magistrate). If he decides that an investigation shall be made, the procedure subsequent to such investigation shall be that laid down in sub-rule (2) above. In cases in which the Court passing strictures on the conduct of the police suggest that an enquiry should be made, the District magistrate will comply with such request in accordance with the procedure prescribed in paragraphs (1) and (2) above. RSA 1113 of 1994 (O&M) 7 (7) Rules 24.14 and 24.15 provide for reports of all serious charges against the police being communicated to the Local Government by a special report. In cases where such serious charges arise from strictures passed by criminal courts, the Superintendent of Police and the District Magistrate should communicate, either in the report itself or in a covering letter, the procedure which they propose to adopt and any information or notes in connection with the case which they consider should be brought to the notice of Government. Rule 24.15 provides the opportunity for Deputy Inspectors- General and Commissioners similarly to communicate their comments to the Local Government. According to the allegations contained in the complaint, an offence under Section 34 of the Act and Section 506 IPC is said to have been committed. It is an admitted fact that no information was given to the District Magistrate of the complaint and investigation/enquiry conducted departmentally against the respondent. According to Rule 16.38 of the Rules, immediate information is required to be given to the District Magistrate of any complaint received by the superintendent of Police which indicates the commission, by a police officer, of a criminal offence in connection with his official relations with the public. The District Magistrate will then decide whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected (Executive Magistrate). When investigation of such a complaint establishes a prima facie case, a judicial prosecution shall normally follow; the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded. When it is decided to proceed departmentally the procedure prescribed in Rule 16.24 shall be followed. An officer found RSA 1113 of 1994 (O&M) 8 guilty on a charge of the nature referred to in the rule shall ordinarily be dismissed. In the present case, however, no information has been passed on to the District Magistrate, therefore, there is apparent violation of Rules 16.38 (1) and (2) of the Rules. Now the question raised is as to whether Rules 16.38 of the Rules is directory or mandatory. In case, it is directory, then it is optional on the part of the police official to pass on the information to the District Magistrate, but if it is mandatory then it is obligatory. In this regard, in the case of Jagan Nath Vs. Senior Superintendent of Police, Ferozepur, AIR 1962 Punjab 38, this Court had held that the provisions of Rules 16.38 (i) and (ii) of the Rules are mandatory and a departmental enquiry held without following it's provisions, was illegal. In the case of Delhi Administration (Supra) and Ram Kishan's Case (Supra) , the Apex Court while interpreting Rules 16.38 of the Rules held that if a police official is dismissed from service without information to the District Magistrate about the complaint against him and without obtaining his decision about investigation in that complaint, the order is illegal and cannot be sustained. Thus, the question that has been riased by the learned counsel for the appellants that Rules 16.38 of the Rules is directory and mandatory, is not a substantial question of law because this question has already been decided by this Court in the case of Jagan Nath (Supra) in favour of the plaintiff/respondent and against the defendants/appellants. Keeping in view the totality of circumstances referred to above, I do not find any error in the judgment and decree of both the Courts below on the point of law, therefore, the present appeal is found to be RSA 1113 of 1994 (O&M) 9 without any merit and is dismissed with costs. December 16,2009 (Rakesh Kumar Jain) RR Judge