CIVIL WRIT PETITION NO.7330 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: NOVEMBER 26, 2009 Varinder Kumar .....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. Kanwaljit Singh, Sr.Advocate with Mr. Vivek Suri, Advocate, for the petitioner. Mr. Yashwinder Singh, AAG, Haryana, for the State. **** RANJIT SINGH, J. Through the present writ petition, the petitioner has not only impugned his order of dismissal from service passed on 22.5.2007 and order rejecting the appeal against the said order, but has also impugned an order of his reversion from the rank of Sub Inspector to that of Assistant Sub Inspector, Police as was ordered CIVIL WRIT PETITION NO.7330 OF 2009 :{ 2 }: on 30.12.2006. In addition, the petitioner would also impugn the department enquiry and the inquiry report on the basis of which the orders of dismissal and reversion have been passed. While issuing notice of motion, this Court did not find any merit in the plea raised by the petitioner that the enquiry proceedings were not conducted fairly. While negating the plea of the petitioner in this regard, the Court observed:- “the first (ground) is that the enquiry proceedings were not conducted fairly. I find this to be meritless as the petitioner never appeared before the Enquiry Officer after the first few dates.” Similarly, the plea of the petitioner that before initiating the proceedings against him permission was required to be obtained from the District Magistrate but had not been so obtained was also not accepted by the Court. It is only third limb of the argument raised by the counsel that the appointing authority of Sub Inspector is Superintendent of Police, yet under Rule 13.3 the promoting authority is Deputy Inspector General of Police. It was accordingly pleaded that S.P. would not have any power to dismiss the petitioner from service. On this aspect, notice of motion was issued. It is, thus, clear that this is the only ground which is required to be considered and adjudicated. The petitioner, who joined as probationer ASI on 25.1.1994, claims to have served the Department with distinction. He was promoted as Sub Inspector on 31.1.2002. He boasts of 40 good entries in his record. The petitioner was transferred from District Panchkula to District Kaithal on 21.4.2005. While on joining time, the CIVIL WRIT PETITION NO.7330 OF 2009 :{ 3 }: petitioner had gone to Shimla for some personal work, where he slipped from the vehicle and suffered acute back pain. As per the petitioner, he was attended to by a Doctor who advised him complete bed rest for six weeks. The petitioner states that he had informed about his illness and had also forwarded an application for grant of leave. Subsequently, he gave an application for extension of leave on 18.7.2005. Still, as per the petitioner, departmental enquiry for absence was initiated and Deputy Superintendent of Police, Kaithal, was appointed as Enquiry Officer on 5.8.2005. It appears that the petitioner continued to remain absent as can be seen from the averments wherein the petitioner states that he had submitted an application for extension of leave on 12.10.2005, which was duly supported by medical certificate. The petitioner would plead that he could not join his duties due to his illness but was treated as absent from duty. The absence was nearly for 11 months. On 8.12.2005, the departmental enquiry was sent to District Panchkula where DSP (Head Quarter) was appointed as Enquiry Officer. The petitioner admits that he was served with the charge sheet and he joined the enquiry proceedings when two prosecution witnesses were recorded. The departmental enquiry was then again sent back to District Kaithal, where the petitioner did not join the enquiry proceedings. He would attribute this absence to his ill health. On 22.3.2006, the petitioner was again transferred back to Panchkula, where he joined on 27.3.2006. On 13.4.2006, the enquiry proceedings were transferred to District Panchkula. The petitioner admits to have received a notice on which he statedly wrote that he was ill and in support had given a medical prescriptions. As per the petitioner, he CIVIL WRIT PETITION NO.7330 OF 2009 :{ 4 }: had intimated that he would join the departmental enquiry as and when he recovered from his illness. It appears that thereafter the enquiry proceedings were held exparte. Without much justification, the petitioner makes an allegation of bias against S.P., Panchkula, who had deputed D.S.P. (Head Quarters) as enquiry officer. The charge of absence levelled against the petitioner was held proved. The petitioner thereafter was issued a show cause notice on 16.5.2006, to which he filed reply. Though the show cause notice was for dismissal from service, but taking lenient view of the matter, the petitioner was ordered to be reverted from the post of Sub Inspector to that of Assistant Sub Inspector on 29.12.2006. The petitioner thereafter filed a statutory appeal against the same which was dismissed on 22.5.2007. Thus, for all practical purposes w.e.f. 29.12.2006, the petitioner is required to be treated as Assistant Sub Inspector and was so treated. Another departmental enquiry had been initiated against the petitioner. Though the petitioner would not make mention to this enquiry in detail but the same is found reflected in the reply by the respondents. While the petitioner was posted as SHO, Police Station Sector 20, Panchkula, a complaint was received by S.P., Panchkula, against one Smt.Ravleen Uppal. It was alleged that she had taken a sum of Rs.2 lacs for sending the complainant to Canada. This complaint was marked for enquiry to the petitioner. The petitioner summoned Ravleen Uppal through notice and pressurized her to make payment of Rs.two lacs by way of two cheques amounting to Rs.one lac and Rs.75,000/- and Rs.25,000/- in cash. Not only that, it is alleged that the petitioner had forced the lady to sit in the Police CIVIL WRIT PETITION NO.7330 OF 2009 :{ 5 }: Station throughout the day and harassed her. This being a dispute of a civil nature, the conduct of the petitioner was viewed as a grave misconduct. Action was proposed and initiated against him. However, this could not be completed due to his transfer from Panchkula to Kaithal. The documents were sent to S.P., Kaithal, who ordered a regular departmental enquiry. The petitioner thereafter again was transferred to Panchkula. The said departmental enquiry was thereafter sent to S.P., Panchkula. The enquiry was then entrusted to D.S.P. (Head Quarter), Panchkula, who completed the same by following the prescribed rules and due procedure. The Enquiry Officer submitted his report on 11.5.2006 holding the petitioner guilty of charge. The petitioner was thereafter served a show cause notice on 4.1.2007 for dismissing him from service. Though this notice was served to the petitioner, but he failed to file any reply within the stipulated period of 15 days. The petitioner was also given personal hearing, when he demanded certain documents as the enquiry was held exparte. The record demanded by the petitioner was duly supplied to him but still he maintained that complete record was not supplied. He, however, submitted his interim reply on 8.3.2007. The documents asked for by the petitioner were supplied to him on 29.3.2007, when he confirmed that he had received the complete set of documents. It was thereafter that order dismissing the petitioner from service was passed on 8.9.2007, which is under challenge before this Court. The ground of challenge ofcourse is that S.S.P. was not competent to pass this order as appointing authority of the petitioner was Deputy Inspector General of Police. CIVIL WRIT PETITION NO.7330 OF 2009 :{ 6 }: A perusal of the reply would show that there is no much dispute in regard to the factual controversy. The petitioner had remained absent for nearly 11 months for which he was proceeded against and was ordered to be reverted. Once this Court has already found the plea of the petitioner to challenge the enquiry proceedings to be without merit, the finding returned by the Enquiry Officers would not call for any interference as the same would now not be open to challenge. Once the finding of the Enquiry Officer about the guilt of the petitioner is upheld, there will hardly be any scope to interfere in the order of reversion passed on the basis of the said finding. In fact, the petitioner has been shown undue leniency while awarding the punishment. A responsible police officer holding the rank of Sub Inspector had remained absent for a period of 11 months, upon being transferred from a particular place. It would speak about the conduct and performance of the petitioner. Such a long absence was required to be dealt with and punished suitably. The order reverting the petitioner rather would sound lenient and call for no interference. That being the position, the petitioner was holding the rank of ASI when the order dismissing him from service was made. The case set up by the petitioner is that being a Sub Inspector, S.P was not competent to order his dismissal as this power rested with Deputy Inspector General of Police, who was competent to order promotion or to order compulsory retirement under Punjab Police Rules. In support this plea, the learned Senior counsel has relied upon judgment passed by this Court in Hira Lal Vs. State of Haryana, 1999 (3) SCT 422. Similar view is taken by this Court in Ram Lal Vs. State of Haryana, 1997 (2) SCT 237. Reference is also CIVIL WRIT PETITION NO.7330 OF 2009 :{ 7 }: made to the case of Rampal Singh Vs. State of Punjab and others, 1993 (2) SCT 166 to point out the distinction in the provisions of Rule 13.9 (2) of the Punjab Police Rules, as applicable in case of ASI in Haryana. Judgment in the case of SI Mawasi Ram Vs. State of Haryana and others, 2001 (4) RSJ 793 is also pressed into service, which is again a case of Sub Inspector who was compulsorily retired under the orders of S.P. It was held that such an order would be beyond the competence of S.P. In my view, the ratio of law laid down in above noted cases would not apply to the facts of the present case. In all the cases, the petitioners were holding the rank of Sub Inspector of Police and were ordered to be compulsorily retired by S.P. of the concerned District. Once the petitioner was ordered to be reverted to the rank of Assistant Sub Inspector, it would not be open for him to urge that his appointing/promoting authority was Deputy Inspector General of Police. Moreover, a distinction is required to be drawn between an order of compulsory retirement and the order of dismissal. It can not be disputed that power to award punishment to an officer holding the rank of Assistant Sub Inspector or Sub Inspector is with S.P of the District concerned. The appointing authority of Assistant Sub Inspector and Sub Inspector is Superintendent of Police as provided under Rule 12.1 of Punjab Police Rules as applicable to Haryana. Superintendent of Police is also the punishing authority for the Sub Inspectors and the Assistant Sub Inspectors as provided under Rule 16.1 of Chapter XV of the Punjab Police Rules. It would require a notice that all the cases cited by the counsel for the petitioner relate to order of compulsory retirement, CIVIL WRIT PETITION NO.7330 OF 2009 :{ 8 }: which was not by way of punishment. In Hira Lal's case (supra), the court after noticing the fact that the appointing authority of Sub Inspector and Assistant Sub Inspector is Superintendent of Police, but observed that promotion in this case to the rank of Sub Inspector was made by Deputy Inspector General of Police and in this background observed that order of compulsory retirement could only be passed by the D.I.G. These considerations may not strictly apply to the case where punishment order is to be made. Order of punishment would be governed by the relevant rule entitling the officer to award punishment. Similarly, in the case of Ram Lal (supra) this view was taken only in the background that petitioner was promoted to the post of Sub Inspector by D.I.G. It was observed in this case that Superintendent of Police would not be competent to revert the petitioner therein. This reversion was not by way of punishment. It may here need a notice that in the present case the petitioner was promoted by Superintendent of Police, Kurukshetra on 21.2.2002 under Rule 12.1 of Punjab Police Rules. Copy of this promotion order has been annexed with the reply as Annexure R-1. The petitioner was promoted to the rank of officiating Sub Inspector which was purely temporary and fortuitous with a condition that he was liable to reversion at any time without issuing any prior notice. His promotion was subject to the final decision in the two departmental enquiries pending against him. It cannot, thus, be said that promotion order of the petitioner was made by D.I.G. to enable the petitioner to seek support from the judgments relied upon by his counsel. Thus, the issue raised by the petitioner about the competency of the CIVIL WRIT PETITION NO.7330 OF 2009 :{ 9 }: Superintendent of Police to pass this order does not arise in the present case because here the promotion was ordered by the Superintendent of Police and he has passed the order of punishment dismissing the petitioner from service for which he would have jurisdiction. Reference here can be made to the ratio of law laid down by the Hon'ble Supreme Court in the case of Ikramuddin Ahmed Borah Vs. Superintendent of Police, Darrang and others, 1988 (Supp) Supreme Court Cases 663. One of the submissions made in this case was that the appellant therein was appointed as Sub Inspector of Police by Inspector General of Police and the order of dismissal passed by Superintendent of Police, thus, was illegal being in contravention of Article 311(1) of the Constitution. Noticing the fact that appointing authorities of the Sub Inspector of Police are Superintendent of Police and the appellant therein was dismissed by a co-ordinate authority, the submission that the order of dismissal was illegal was found to have no substance. The order of dismissal passed by Superintendent of Police was upheld though the Sub Inspector in this case was appointed by Principal Police Training College Dergaon. In fact, the grounds raised by the petitioner about the competency of the Superintendent of Police concerned to pass the impugned orders were not raised in appeal filed by the petitioner. Though in the second appeal filed by the petitioner against the order of dismissal, he did make a passing reference about the competency of the Superintendent of Police to pass the order on the ground that the appointing authority of the Sub Inspector was DIG, but that aspect is factually inaccurate and hence cannot lead to any benefit to CIVIL WRIT PETITION NO.7330 OF 2009 :{ 10 }: the petitioner. There is, thus, no merit in the petition. The same is accordingly dismissed. November 26, 2009 ( RANJIT SINGH ) khurmi JUDGE