HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. : 928 of 2004. Reserved on: 22.8.2008. Decided on: 19.9.2008. State of H.P. and others ……… Petitioners. Versus Mohinder Singh. ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioners: Mr.Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr.P.P. Chauhan, Advocate. Per V.K. Ahuja, J.: This is a civil writ petition filed by the petitioner-State under Articles 226 and 227 of the Constitution of India against the order passed by the learned H.P. State Administrative Tribunal, dated 16.9.2003, in O.A. No.1136 of 2002. Briefly stated the facts of the case are that an application under Section 19 of the Administrative Tribunals Act was filed by the respondent (hereinafter also referred to as the applicant) before the learned Tribunal challenging the order passed by the petitioners whereby major punishment of forfeiture of five years service was imposed upon him on 7.4.2002 and the appeal filed by the applicant against the said order was also rejected on 27.12.2001. The said orders passed by the petitioners were challenged by the respondent and the __________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. learned Tribunal vide its impugned order, quashed the orders passed by the petitioners. The facts leading to the filing of the present writ petition are that the respondent joined services of the petitioners on 22.12.1986. It was alleged that an FIR No.149/1996 was registered against the respondent-applicant under Section 451 and 506 IPC at Police Station, Rohru for misbehaving with a girl. The criminal complaint was instituted on 20.9.1997 in the court of learned Additional CJM against the applicant for the said offence. The departmental enquiry was also instituted against the applicant on 27.9.1997. A charge sheet was issued to the applicant and an Enquiry Officer was appointed who submitted his report. A show cause notice was issued to the applicant for proposed punishment of forfeiture of five years service. The applicant filed the reply to the same. In the meanwhile, the applicant was acquitted by the criminal court. However, on 7.4.2002, the impugned order of penalty of forfeiture of five years of service was issued to the applicant who filed an appeal before the DIG, which was dismissed. The said orders were challenged before the learned Tribunal, who set aside the same. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned Deputy Advocate General for the petitioners were that the mere fact that the applicant was acquitted by the criminal court does not lead to the inference that he could not have been proceeded with simultaneously in a departmental enquiry. It was also submitted that findings of fact had been recorded by the enquiry officer and the findings given by the criminal court cannot be considered in the departmental enquiry initiated against the applicant. It was also submitted that there was nothing before the learned Tribunal to hold that the order passed by the competent authority, affirmed on appeal, as against the applicant suffered from any illegality and without there being any material on record, the learned Tribunal has wrongly set aside those orders. On the other hand, the learned counsel for the respondent had submitted that according to the provisions of Rule 16.3 of Police Rules, the applicant could not have been proceeded with departmentally also. It was also submitted that there was a bar in conducting the departmental enquiry once criminal proceedings had been initiated against the applicant and since he had been acquitted of the charge, there are no findings of misbehaviour and accordingly the order passed by the learned Tribunal does not suffer from any illegality. To substantiate his case, the Deputy Advocate General has placed reliance on the decision in Naranjan Singh vs. State of Punjab and another, 1998(4)SLR, 732, of a Division Bench of Punjab and Haryana High Court, which shows that a reference was made to Rule 16.3 of the Punjab Police Rules. It was observed that in criminal trial, the charge has to be proved beyond reasonable doubt. In departmental enquiry, such strict standard of proof is not applicable. It was held that there is no bar in initiating the disciplinary proceedings and there was no violation of Rule 16.3 of the Punjab Police Rules. Another decision relied upon by the learned Deputy Advocate General in Beli Ram and others vs. The State of Himachal Pradesh, 1981(I) SLR 264, shows that for prosecution of police officer for an offence committed in connection with his official relations with the public, sanction of the District Magistrate was not necessary. It was observed that judicial prosecution is the normal rule, departmental action is an exception. It was held that for departmental proceeding, sanction of District Magistrate necessary though it was not necessary for judicial prosecution. Other decision relied upon by the learned Deputy Advocate General is in Bhagat Ram vs. Inspector General of Police, Himachal Pradesh and others, 1979(3) SLR 256, which shows that a reference was made to the various provisions of the Police Act and Rules and the observations made are relevant which are being reproduced below: “Section 7 of the Act does not contain any exhaustive list of the punishments which could be awarded under the Act. It is undoubtedly true that some punishments would have been enumerated in both parts of Section 7. But there is nothing to suggest that this enumeration is fully exhaustive in nature. The types of punishments which are contemplated by Section 7 in both of its parts are merely enumerative. The section also does not say anything to the effect that no punishment other than that which is specified in the Section could be awarded to a delinquent officer. In our opinion, therefore, it is clear that Section 7 does not debar the rule making authority to prescribe the form of punishment which is not enumerated therein. That being the position, it is not possible to say that the punishment of stoppage of increment or forfeiture of approved service is in any manner contrary to the provisions of Section 7.” On the other hand, the learned counsel for the respondent, in support of his submissions, had placed reliance upon the decision in Mohinder Pal vs. State of Punjab and others, 1987(1) SLR 266, which shows that the petitioner was acquitted in criminal case. Departmental enquiry was held on the identical charges. A reference was also made to Rule 16.3 that it does not permit departmental punishment after acquittal in criminal proceeding. It was held that since the charges were not proved, the termination order was bad and the petitioner was entitled to reinstatement. This decision is not applicable in view of the Division Bench decision of Punjab and Haryana High Court in Naranjan Singh’s case (supra). The another decision relied upon by the learned counsel for the respondent in Banarsi Lal vs. Union of India and others, 1984 LAB.I.C. 1409, shows that it was observed as under: “A disciplinary authority, which does not accept the finding of the Enquiry Officer recorded in the inquiry report and wants to take action against a delinquent government servant is enjoined upon to afford an opportunity of hearing to the delinquent government servant. Interests of justice require that in case the Disciplinary Authority does not accept the report of the Enquiry Officer exonerating a government servant it should record its provisional conclusions and issue a notice to the concerned public servant asking him to show cause why the proposed punishment be not imposed on him………………………….” Coming to the facts of the case, it is clear from a perusal of the observations made by the learned Tribunal that the criminal proceedings were initiated against the applicant on 20.9.1997 and departmental proceedings were initiated on 27.9.1997, which leads to the inference that departmental proceedings were initiated simultaneously with criminal prosecution and these were not initiated after the acquittal of the applicant. There is no bar in proceeding with the departmental enquiry simultaneously and, therefore, the action of the petitioners in that regard cannot be said to be illegal. Moreover, there is no substance in the plea raised that the criminal proceedings and departmental enquiries were on identical facts. The learned Tribunal had itself observed in para 9 of its order that it was averred that: “If a summary of allegations and charge sheet are perused, it would show that in addition to house tress pass and criminal intimidation which were the charges in criminal proceedings the allegation of serious misconduct with police personnel in uniform under the influence of liquor was also attributed to the applicant in the departmental inquiry.” The mere fact that the impugned punishment was awarded after the applicant has been acquitted is not sufficient to hold that the departmental proceedings could not have been initiated since these were initiated simultaneously alongwith the prosecution of the applicant in the criminal case. It is not disputed that the permission of the District Magistrate was taken but a plea was taken on technicality that the permission was granted without application of mind and as such it was bad in law. The permission was taken for the departmental inquiry and there is nothing to hold that there was no application of mind and this fact was, therefore, wrongly considered by the learned Tribunal in coming to the conclusion that the impugned orders were liable to be set aside. The learned Tribunal had mainly relied upon the provisions of Rule 16.3 of the Police Rules to hold that when the applicant was acquitted by the criminal court, he should not have been punished departmentally, but we are unable to agree to those findings mainly on the ground that in the departmental enquiry, there were some other charges also in regard to misbehaviour of the applicant in a public place and there is no bar in proceeding with the departmental enquiry alongwith the criminal proceedings. In regard to the plea considered by the learned Tribunal regarding the punishment, there are various decisions of the Apex Court that the courts are not required to interfere in regard to the questions as to what punishment should be given to a delinquent official, which is the competent authority to decide. Keeping in view the facts that the applicant had been held guilty as per the report submitted by the Enquiry Officer and there is nothing specific on record to show as to how the principles of natural justice were not followed in conducting the enquiry by the Enquiry Officer and the said findings have been affirmed by the Appellate Authority, there was no material before the learned Tribunal to hold that the impugned orders passed by the petitioners suffered from any illegality and were liable to be interfered with. We accordingly hold that the impugned order passed by the learned Tribunal cannot be said to be correct and is liable to be quashed and set aside and the same is quashed accordingly. The writ petition filed by the petitioners is allowed accordingly. Consequences to follow. There is no order as to costs. (Deepak Gupta), Judge. September 19, 2008. (V.K. Ahuja), (TILAK) Judge.