IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 4344 of 2008 Date of decision: 26.07.2010 _________________________________________________________________ Mehar Chand Soni .....Appellant. Versus State of H.P. and others .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes _________________________________________________________________ For the appellant: Mr. K.D. Shreedhar, Advocate, for the petitioner. For the respondents: Mr. Rajinder Dogra, Additional Advocate General, for the respondents. V.K. Sharma, J. (Oral). The challenge herein is against the charge sheet dated 1.2.1997 (Annexure A-1) which is to the following effect: “GIST OF CHARGES 1. He had done his first marriage with Smt. Bibi, which registration he has done in his character roll and thereafter he solemnised two more marriages with Smt. Rukshad Begum and Smt. Shabibi from who he has children also. 2. For performing these marriages he neither informed the competent authoritynor obtained any permission which was essential under the relevant rules, though this may be permitted -2- according to his religious customs. The above misconduct is in complete violation of provisions of C.C.S. Conduct Rules 21 (2) Sd/- 1.2.97 (RAJINDER SINGH) Dy. Supdt. Of Police, Chamba, Distt. Chamba (H.P.) Head Constable Shafi Mohd. No. 130 Police Repo9rting Room, Dalhousie Police Station, Dalhousie Distt. Chamba.” 2. It is the case of the petitioner that earlier also he was proceeded against for the same charges vide Charge Sheet Annexure-A-2 and regular disciplinary proceeding were held against him in that behalf. The inquiry culminated into exoneration vide report dated 17.05.1996 (Annexure A-7) with the following conclusion: “CONCLUSION: Keeping in view all aspects of the inquiry I have reached the conclusion that the first allegation of the charge sheet has been proved untrue and second charge could not be proved.” 3. Resultantly, show cause notice dated 13.7.1996 (Annexure A-8), was served upon the petitioner by the disciplinary authority calling upon him to show cause, as to why he should not be removed from Police Service for the disqualification allegedly incurred by him on the above counts. Accordingly, the petitioner submitted reply to the -3- show cause notice which is at (Annexure A-9), and the same found favour with the disciplinary authority and consequently, the matter was closed by an order dated 30.08.1996, (Annexure- A-10) in the following terms: “Therefore, it is felt that there is no necessity of any action under service Rules/ conduct Rules against Head Constable Safi Mohammad. However, it is hereby ordered that the above Head Constable should inform the department without any delay regarding his marital relations and after apprising the factual position, if it is found necessary, he should obtain statutory permission.” 4. However, even after exoneration of the petitioner, as noticed herein above, a fresh charge sheet dated 01.02.1997 was served upon him on the same counts as above, which is under challenge in the present petition. 5. The respondents have justified the de novo inquiry on the following averments set up vide para 6 (v), (vi) and (ix) (a) of their reply: “6(v) In reply to this para it is submitted that the respondent No.3 has reached a wrong conclusion on the basis of the enquiry conducted in a perfunctory manner and the punishing authority passed the order in a casual manner. 6 (vi) In reply to this para it is submitted that while the case of the applicant was being examined in the office of the respondent No.2 for promotion it was found that the departmental enquiry has been conducted in a perfunctory manner -4- and the respondent No.3 passed the order in a casual manner. Therefore, the Dy. Inspector General of Police, Northern Range was asked to review the proceedings. It is worthwhile to submit here that from the record it is found that the applicant has contracted 3 marriages. Before his enrollment he married Basan Bibi. His second wife was Rukshad Begum whom he married in the year 1987, 88, and in the year 1990 he solemnised third marriage with Ms. Shabibi. The Enquiry Officer did nothing to verify facts brought on record to ascertain truth during the course of enquiry and submitted the enquiry report. The punishing authority also did not appreciated the evidence carefully and passed the order exonerating the applicant. Therefore, in view of the above facts brought on record it can safely be concluded that the departmental enquiry has not been conducted in a proper manner. There is evidence of 3 marriages contracted by the applicant but there is nothing on record to show that he had sought permission of the competent authority in this regard or divorced his wives before marrying Shabibi. In this background the Dy. Inspector General of PoliceNorthern Range was asked to review the proceedings and accordingly the Dy. Inspector General of Police, Northern Range has ordered a denovo enquiry for the above above stated misconduct. Since -5- the enquiry is pending, he cannot be promoted till the finalisation of enquiry. 6 (ix) In view of the above submissions the grounds put forth carry no weight. 6 (ix)(a) In reply to this para it is submitted that the applicant was exonerated by the Enquiry Officer without verifying the facts. When the matter cam e to the notice of higher authority it was found that the enquiry was not conducted properly. Therefore, the Dy. Inspector General of Police, Northern Range was asked to review the proceedings and who ordered a denovo enquiry. The action of the respondents is legal in accordance with the provisions laid down in P.P.R. 1628 as applicable to State of H.P. The rest of the averments made in this para is denied in view of the submissions in foregoing para.” 6. However, I am of the considered opinion that once the petitioner had already been exonerated after observing the procedure laid down in Rule 15 of the CCS (CCA) Rules, such a course was not available to the disciplinary authority much less an authority above in the hierarchy, such as Deputy Inspector General of Police and that too at the time of consideration of the petitioner for promotion and without affording an opportunity of being heard to him. -6- 7. In this regard I am fortified by the law laid down by the Hon'ble Supreme Court in K.R. Deb versus the Collector, Central Excise, Shillong vide para-13, AIR 1971 SC 1447 of the judgment which is as follows:- “13. It seems to us that Rule 15, on the face of it, really provides for one particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9. 8. In view of what has been stated herein above, the petition succeeds and is accordingly allowed. Consequently, the disciplinary proceedings initiated against the petitioner vide memo dated 01.02.1997 (Annexure A-1) are quashed and -7- resultantly, the petitioner shall be entitled for all the consequential benefits. 9. The petition stands disposed of. Pending CMP(s), if any, shall also stand disposed of as infructuous. (V.K. Sharma) Judge 26th July, 2010 (pritam)