Civil Writ Petition No.17407 of 2008 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: August 12, 2009 Dharam Pal ...Petitioner VERSUS State of Haryana & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.R.S.Jhand, Advocate, for the petitioner. Mr.Harish Rathee, Sr.DAG, Haryana, for the State. ***** RANJIT SINGH, J. The petitioner, a police officer, stands dismissed from service for getting a statement of prosecutrix recorded in a Court under Section 164 Cr.P.C. One may wonder what offence he has committed to face dismissal and lose over 37 years of service. If there could be an answer to this, then it is available in the form of Civil Writ Petition No.17407 of 2008 (O&M) : 2 : allegation that the petitioner got the statement recorded without taking permission of his senior. The petitioner was the Investigating Officer in the case. Was he to take permission for this?. Dismissal from service is his fate. He has, thus, challenged his fate-the punishment of dismissal. Even providence does not seem to be in his favour. The petitioner is detected to be suffering from cancer. When the adversities come, these come in plenty. That seems to be so for the petitioner He is before the Court seeking priority hearing of his writ petition, which was admitted on 20.1.2009, to be heard within one year. Person suffering from such deadly disease should not suffer delay in decision of his fate. Writ would deserve priority hearing and so is taken up for hearing straightway. The trouble for the petitioner started when FIR No.42 was lodged by one Smt.Chameli Devi on 14.4.2006, alleging offences under Sections 376/506/34 IPC at Police Station Siwani, District Bhiwani. The petitioner was entrusted with investigation of this FIR. The investigations were to be verified by DSP Ram Kumar. He (DSP Ram Kumar) came to opine that the allegations made in the FIR were false. Accordingly, the cancellation report dated 16.5.2006 was prepared for presenting it to the court. Smt.Chameli Devi appeared before the officials with villagers and objected to the proposal to file cancellation report. This led to re-investigation of the case. The petitioner was again entrusted with this reinvestigation. The trouble for the petitioner would start now. It is alleged that petitioner knew the case to be a false but still, got statement of the complainant recorded under Section 164 Cr.P.C. Civil Writ Petition No.17407 of 2008 (O&M) : 3 : before JMIC, Siwani without informing the senior officers. This was enough for the seniors to suspend the petitioner, on 11.6.2007. It is not clear if gravamen of the allegation is for recording statement or for doing so without permission. Charge-sheet dated 24.8.2007 was prepared against the petitioner and served on him. He is accused of fabricating false evidence by getting the statement of the prosecutrix recorded in the Court. One would wonder how this allegation would stand against him. DSP, Dadri was detailed to conduct the enquiry for the allegations made in the charge-sheet (Annexure P-2). The petitioner filed a reply and thereafter matter was enquired into. Guilty was the verdict returned by the Enquiry Officer. What else it could have been once he was charge sheeted by the Superintendent of Police of the District. The matter is then placed before the Superintendent of Police, who records that he has carefully examined the case and is of the view that petitioner has exhibited gravest act of misconduct. He has further recorded that such like misuse of official status should be dealt with heavy hand to check the menace of misuse. Thereafter, he has proceeded to record that no punishment other than dismissal would meet the ends of justice. The dismissal is thus the punishment imposed on him. Such a strong reaction from generally known insensitive police would sound a bit out of place. A little peep into the background ofcourse would disclose the reasons for this wrath. The reply filed by State to the petition would give an indication in this regard. Ex.Member parliament stationed at Delhi had made a complaint to Director General of Police, alleging false implication of Civil Writ Petition No.17407 of 2008 (O&M) : 4 : the persons in this FIR at the instance of DSP Deepak Saharan and his brother Chander Parkash. This led to an enquiry and finally an action against the petitioner. It is not clear if any action is taken against DSP Deepak Saharan or his brother, who were stated to be instrumental in lodging of complaint. This background is enough for the Superintendent of Police to ignore fairness in exercise of his power. To him, this would look to be a gravest misconduct. He would not notice the defence of the petitioner that he had been posted out of the place after the statement of the prosecutrix was recorded. He would also not consider that the petitioner was detailed to go to the court by the S.H.O. and identify the lady for recording her statement. Superintendent of Police would conveniently ignore that Non Bailable Warrants for the accused was obtained by some other officer and it led to arrest of the accused named in the FIR. He would also not consider that prosecutrix was not examined at the enquiry. The petitioner was entrusted with investigation. DSP was the supervisory officer of the investigation. On representation of the complainant and the villagers, the reinvestigation was done which was again entrusted to the petitioner. The petitioner apparently was doing his duty as Investigating Officer. Even SHO was to supervise the investigation. Subsequent action was taken by some other officer by obtaining Non Bailable Warrants from the Court. If the case was false and cancellation report was prepared then why this action to get Non Bailable Warrant and follow up was taken by other officer including SHO?. What misconduct would be on the part of Investigating Officer-Police Officer, if he takes the prosecutrix to the Court to make a statement? No answer would be forthcoming to Civil Writ Petition No.17407 of 2008 (O&M) : 5 : these posers. These did not invite any attention of the Superintendent of Police. This appears to have become misconduct, when Ex.Member of Parliament intervened. Where was the need to inform superiors? Why others did not do so? Even the State counsel could not draw my attention to any provision which would require the Investigating Officer to take such permission from his superior for getting the statement of a prosecutrix recorded before the Court under Section 164 Cr.P.C. The stand of the petitioner is that he was sent only to identify the lady, which would indicate that the petitioner was not the one who was instrumental in recording the statement. Such questions are begging for answers. The case may be seen from another angle. It is alleged that the petitioner knew this case to be false but still got the statement recorded. It has not yet been established that case is false. The cancellation report though filed but is yet to be accepted by the Court. The complainant has appeared before the Court and has filed protest petition against the cancellation report. Case is fixed for recording preliminary evidence as per the orders placed before me during the course of hearing of the case. How the allegations made against the petitioner would, thus, stand. This has completely escaped notice of the Superintendent of Police concerned who has passed the order. He has also failed to appreciate that responsibility of making false allegations would be of Chameli Devi, who is the complainant in this case. What misconduct was committed by the petitioner in just going and identifying the prosecutrix, who made the statement, which is recorded under Section 164 Cr.P.C. really cannot be appreciated. To my mind, the petitioner has been charged Civil Writ Petition No.17407 of 2008 (O&M) : 6 : with something which really may not be a misconduct. Strangely, the petitioner has been dismissed from service for this. The punishment, to say the least, appears highly disproportionate to the gravity of misconduct charged, if it may be called a misconduct, which, according to the Superintendent of Police has lowered the image of police department. The Superintendent of Police has viewed that petitioner is required to be dealt with heavy hand to check and eliminate the menace of misuse of official status. What official status the petitioner has misused is not specified. The punishing authority (Superintendent of Police) has viewed that there is no other punishment than the dismissal, which would meet the ends of justice. The question of the choice and quantum of punishment would be within the jurisdiction and decision of the punishing authority. The punishment should not be unduly harsh and vindictive. It should also not be disproportionate to the gravity of misconduct as to shock the conscience. If the punishment awarded is such which is an outrageous defiance of logic, then it would not be immune from correction as a part of judicial review. Judicial review is not generally directed against the decision, but against the decision making process. Irrationally and perversity are recognised grounds of judicial review. In this regard, reference may be made to the observations of Lord Deplock in Council of Civil Service Union Versus Minister of Civil Service (1984 3 WLR 1174 (HL), which are as under:- “.......Judicial Review has I think, developed to a stage today when without reiterating any analysis of the steps Civil Writ Petition No.17407 of 2008 (O&M) : 7 : by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call `illegality', the second `irrationality' and the third `procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of `proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community........”. This was referred to with approval by Hon'ble Supreme Court in Ranjit Thakur Vs. Union of India and others, AIR 1987 SC 2386. In Bhagat Ram Vs. State of Himachal Pradesh and others, AIR 1983 SC 454, the Hon'ble Supreme Court held as under:- “It is equally true that penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity or the misconduct would be violative of Article 14 of the Constitution of India.” It would need to be emphasised here that all powers have legal limits. Even if the petitioner had got the statement of the prosecutrix recorded in the court without the concurrence of the senior officers, the same was open to be corrected, rather than Civil Writ Petition No.17407 of 2008 (O&M) : 8 : acting against him in this harsh manner. The punishment of dismissal would sound rather harsh and disproportion even to the nature and gravity of the misconduct alleged. The impugned order would also show that the punishing authority did not consider the long service of 37 years rendered by the petitioner, while passing the order of dismissal. It was incumbent upon the disciplinary authority to take this into consideration in terms of Rule 16.2 of the Punjab Police Rules. This rule provides that dismissal shall be awarded only for gravest act of misconduct and in making such award, regard shall be had to the length of service of the offender and his claim for pension. The misconduct alleged against the petitioner is not mentioned as gravest act of misconduct in the list of misconducts referred in the rule. There is no consideration given to the length of service of the petitioner,which is also to be seen while awarding dismissal. In this regard, I can seek support from Dhan Singh Vs. State of Haryana and others, 2009(2) SLR 40, where the order of dismissal was said to be bad on this ground where it is made without taking into consideration the fact of long service rendered by the individual while imposing the punishment of dismissal. The cancellation report, which was filed subsequently, is yet to be accepted. The cancellation report is being contested vigorously by the complainant. Least what was expected from the punishing authority was to wait for the outcome of the cancellation report before taking action against the petitioner. One would have to visualise the fate of the order against the petitioner if the court ultimately declines to accept this cancellation report pending adjudication. Would then the punishing authority be in any position to Civil Writ Petition No.17407 of 2008 (O&M) : 9 : justify the order of dismissal?. The punishing authority has totally ignored 37 years of service rendered by the petitioner, which was required to be kept in view statutorily. It appears that punishing authority has ignored all valid considerations and the law while imposing this highly disproportionate punishment to the petitioner. Even if there was some misconduct, which though is not made out from the record, the punishment as awarded is certainly one which will shock one's conscience and would in itself amount to a bias. This appears to be the outcome of the interjection by Ex.Member of Parliament. The punishment would sound irrational and even perverse. This will be more so when seen in the background of the provisions of Rule 16.2 of the Rules. In the facts and the background as noticed, the order of punishment of dismissal from service against the petitioner is vitiated. The conclusion may pose another question as to whether further action to impose any fair punishment is called for in this case or not. That course if left open, may lead to another unfair consequences. Misconduct alleged is not fully made out. No action appears to have been taken against others, who continued to pursue the case and took no action to take corrective measures. Cancellation report is yet to be accepted. There is no loss to the State and charge, if any, appears trivial infirmity in performance of duties. The petitioner, in the meantime, is found to be suffering from cancer. All these factors show that it would not be fair to put the petitioner to hazard of fresh enquiry or any fresh punishment. The writ petition is allowed. The order of dismissal passed against the petitioner is quashed. Direction is hereby issued to Civil Writ Petition No.17407 of 2008 (O&M) : 10 : reinstate the petitioner into the service forthwith. The present D.G.P. may look into the case if all this action was taken to favour some privileged persons, who were accused of having committed serious offences, like rape but are being let off. August 12, 2009 ( RANJIT SINGH ) ramesh JUDGE