RSA No.669 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.669 of 2008 (O&M) DATE OF DECISION: 10.12.2009 **** State of Haryana and others . . . . Appellants VS. Mohinder Singh . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Anjum Ahmed, Addl. A.G. Haryana. Mr.Shyam Kumar, Advocate for the respondent. **** RAKESH KUMAR JAIN J. (ORAL) Defendants are in second appeal. Plaintiff has filed a suit for declaration challenging the orders dated 25.6.1999 passed by the Superintendent of Police, Sirsa (defendant No.3) and 24.2.2000 passed by the Inspector General of Police, Hisar Range, Hisar (defendant No.2) vide which the punishment of reduction in the rank of the plaintiff was set aside with the stoppage of two future annual increments with permanent effect. It was alleged that the nature of charges, levelled against the plaintiff, constitutes a criminal offence under the various provisions of Indian Penal Code but the Mandatory concurrence of District Magistrate under Rule 16.38 of the Punjab Police Rules, 1934 (for short ‘the Rules’) was not taken before the proceeding with the departmental enquiry, in which the aforesaid orders dated 25.6.1999 and 24.2.2000 have been passed. RSA No.669 of 2008 (O&M) -2- On the other hand, in the written statement, it was alleged that at the time of enquiry full opportunity of hearing was given to the plaintiff in terms of provisions of Rule 16.24 of the Rules and thereafter a speaking order has been passed. On the pleadings of the parties, following issues were framed on 23.5.2002: - ”1. Whether the order dated 25.6.99 passed by Superintendent of Police, Sirsa, defendant No.3, whereby the plaintiff was reverted from the post of head Constable to the post of Constable is illegal, null and void and against the principle of natural justice and liable to be set – aside? OPP 2. Whether the order dated 24.2.2000 passed by defendant No.2, whereby the appeal of the plaintiff has been accepted partly and punishment of stoppage of two future annual increment was awarded, is wrong, incorrect, null and void and liable to be set aside? OPP 3. If issues No.1 and 2 are decided in affirmative as to what effect? OPD 4. Whether the Civil Court has no jurisdiction to entertain the present suit? OPD 5. Whether the suit of the plaintiff is neither maintainable nor sustainable in the eyes of law? OPD. 6. Whether the plaintiff has no locus – standi to file the present suit? OPD RSA No.669 of 2008 (O&M) -3- 7. Whether the suit of the plaintiff is bad for want of mandatory notice under Section 80 of CPC? OPD 8. Relief.” The plaintiff led both oral as well as documentary evidence, in which, he had examined himself as PW-1 and adduced his affidavit Ex.PW-1/A in examination-in-chief. He adduced the documents Ex.P-1 order dated 25.6.1999, Ex.P-2 order dated 24.2.2000, Ex.P-3 Legal Notice, Ex.P-4 to Ex.P-6 postal receipts and their acknowledgments Ex.P-7 and Ex.P-8, respectively. The defendant also led oral as well as documentary evidence, in which, Constable Banwari Lal was examined as DW-1, who adduced his affidavit Ex.DW-1/A in examination-in-chief, ASI Asha Rani was examined as DW-2 and documents Ex.D-1 to Ex.D-12 and Mark ‘A’ to Mark ‘D’ were also produced. Learned trial Court, after deciding material issues No.1 and 2 together found that defendants have failed to prove that the enquiry against the plaintiff was conducted as per provisions of the law. It was held that the perusal of the allegations given in the gist of the allegation Ex.D-6 clearly disclosed the ingredients of Section 160 of IPC and Section 145 of Railway Act for which the plaintiff should have been prosecuted judicially by instituted a criminal case and if the Superintendent of Police had found to proceed departmentally against the plaintiff then he should have abide by the Rule 16.38 (1) of the Rules which is reproduced as under: “(i) Where a preliminary enquiry or investigation into a complaint alleging the commission by an enrolled police officer or a criminal offence in RSA No.669 of 2008 (O&M) -4- connection with his official relations with the public, establishes a prima facie case, a judicial prosecution shall normally follow. Where, however, the Superintendent of Police, proposes to proceed in the case departmentally, the concurrence of the District Magistrate shall be obtained.” Learned trial Court found that the concurrence of the District Magistrate is required to be obtained by the Senior Superintendent of Police before the initiation of the departmental proceedings and hence issues No.1 and 2 were decided in favour of the plaintiff and against the defendants and it was held that the enquiry proceedings are vitiated. Consequently, the suit was decreed with costs with all the consequential benefits and the impugned orders dated 25.6.1999 and 24.2.2000 passed by the defendants No.3 and 2, respectively, against the plaintiff were set aside. The First Appeal filed by the State of Haryana (defendants) met with the same fate. In the present appeal, learned counsel for the appellant has argued that in case the appellants finally hold the respondent guilty of a criminal offence then the Senior Superintendent of Police is competent to initiate the departmental proceedings against them and there is no need to seek the concurrence of the District Magistrate. On the other hand, learned counsel for the respondent has argued that the provisions of Rule 16.38 of the Rules are mandatory in nature. It is submitted that the concurrence of District Magistrate as provided in the above said Rule has not been obtained arbitrarily by the Superintendent of Police. He also refers to the decision of the Supreme Court in the case of “Delhi Administration Vs. Chanan Singh” 1969 SLR 217, in which Rule 16.38 of the Rules have been RSA No.669 of 2008 (O&M) -5- examined and it has been held that if the departmental enquiry has been held against the police official without obtaining directions from the District Magistrate, then the said enquiry is invalid. He also referred to another decision of the Supreme Court in the case of “State of Punjab Vs. Raj Kumar” AIR 1988 SC 80, in which the provisions of Rule 16.38 of the Rules are held to be mandatory. After hearing learned counsel for the parties and keeping in view the facts and circumstances of the case, neither I find any substance in the arguments raised by the counsel for the appellants nor I find any question of law much less substantial involved in the present appeal. Hence, the same is hereby dismissed though without any order as to costs. (RAKESH KUMAR JAIN) DECEMBER 10 , 2009 JUDGE vivek