IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 1369 of 1987 Date of Decision: November 27, 2009 Haryana State …Appellant Versus Harbans Lal …Respondent CORAM: HON’BLE MR. JUSTICE M.M. KUMAR Present: Mr. R.D. Sharma, Deputy Advocate General, Haryana, for the appellant. None for the respondent. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. The sole question of law raised in the instant appeal filed under Section 100 of the Code of Civil Procedure, 1908, is whether the provisions of Rule 16.38 of the Punjab Police Rules, 1934 (as applicable to Haryana) [for brevity, ‘the Rules’] are mandatory? Brief facts of the case are that the plaintiff-respondent was a Constable in the IInd Battalion Haryana Armed Police, Madhuban. He was dismissed from service vide order dated 16.6.1984, passed by the Commandant of IInd Battalion Haryana Armed Police, Madhuban, after holding an inquiry. It was found that the plaintiff-respondent after consuming liquor had gone to the R.S.A. No. 1369 of 1987 quarter of another Constable, namely, Ram Singh and addressed him in abusive language under the influence of liquor. The Enquiry Officer submitted his report, which constituted the basis of issuance of show cause notice to the plaintiff-respondent. After consideration of the reply filed by him, the Commandant held the plaintiff- respondent guilty of the charges and dismissed him from service, vide order dated 16.6.1984. His appeals filed under Rule 16.29 and 16.30 of the Rules were dismissed. He then filed a Civil Suit No. 402 of 1985 on 19.7.1985 challenging the order of his dismissal. The trial Court found that the provisions of Rule 16.38 of the Rules were mandatory and sanction of the District Magistrate was required to be obtained. The aforesaid view has been expressed by the Trial Court in para 11 of the judgment, which reads thus:- “11. There is another way of looking at the things. Assuming that the alleged misconduct of plaintiff had fallen with the purview of rule 16.38. In that case the departmental enquiry stands vitiated for want of concurrence of District Magistrate which is mandatory required to be obtained before ordering the domestic enquiry. There is no evidence on the file to show that the commandant had obtained the concurrence of District Magistrate before proceeding against the plaintiff departmentally. It has been held in Sher Singh’s case (Supra) [Sher Singh v. Union of India, 1966 PLR 186] that rule 16.38 of the Rules must be strictly followed and 2 R.S.A. No. 1369 of 1987 that before a police constable can be proceeded departmentally, there must be an order of District Magistrate that he should be so proceeded. It was further held that in the absence of such a sanction an enquiry held against delinquent officer is illegal. So, the enquiry held against plaintiff is also illegal for the same was proceeded without the concurrence of District Magistrate. For the reasons aforementioned, I hold that the orders dated 16.6.84 and 5.7.85 dismissing the plaintiff from service are illegal void, against the rules and are liable to be set aside. This issue is, therefore, decided against the defendant and in favour of the plaintiff.” Apart from the aforesaid finding the trial Court has also recorded another finding that the act of the plaintiff-respondent was not an act resulting into any criminal offence which has a nexus with his official conduct with the general public. He did not commit any offence in connection with his official duties with the public. The misconduct of the plaintiff-respondent in abusing Ram Singh, Constable, under the influence of liquor was regarded at best to be a criminal offence committed by him in his private capacity. However, the aforesaid findings are not required to be gone into in view of the categorical view expressed by the trial Court that sanction of the District Magistrate for initiating department inquiry was required to be obtained, which is mandatory under Rule 16.38 of the Rules. The 3 R.S.A. No. 1369 of 1987 view of the trial Court has been affirmed by the learned lower Appellate Court. The legal issue has been concluded in favour of the plaintiff-respondent and against the defendant-appellant State by Hon’ble the Supreme Court in the case of Delhi Administration v. Chanan Shah, AIR 1969 SC 1108. In para 9 of the judgment it has been held that it was necessary to decide whether the provisions of Rule 16.38 of the Rules were mandatory or directory. Their Lordships’ of Hon’ble the Supreme Court held that there was no substantial compliance with its provisions. The aforesaid view has been followed and applied by a 5-Judge Constitution Bench of Hon’ble the Supreme Court in the case of Union of India v. Ram Kishan, (1971) 2 SCC 349. In concluding para of the judgment the view taken in Chanan Shah’s case (supra) has been followed and it has been held that there was no compliance whatsoever of Rule 16.38 (1) of the Rules and the order of dismissal was illegal. It is pertinent to mention that Rule 16.38 of the Rules as applicable to Punjab is substantially the same as it is applicable to Haryana. The question whether the rule is mandatory or directory fell for consideration of Hon’ble the Supreme Court in the case of State of Punjab v. Raj Kumar, (1988) 1 SCC 701. Placing reliance on Chanan Shah’s case (supra) as well as Ram Kishan’s case (supra) and reversing a Full Bench judgment of this Court in Raj Kumar, A.S.I. v. State of Punjab, 1976 CLR (P&H) 39, it has been held as under:- “Rule 16.38 only mandates the investigation of cases 4 R.S.A. No. 1369 of 1987 pertaining to departmental enquiries and the holding of departmental enquiries in accordance with the procedure prescribed thereunder. The rules does not override the provisions of the Criminal Procedure Code in terms of Sections 4 and 5 of the Code. The rule read in conjunction with the Police Act does not prescribe a different procedure for the investigation and prosecution of offences committed by police officers under the IPC or other Acts in connection with their relations with the public. Purpose underlying the rule is to enable the District Magistrate and the District Superintendent of Police to exercise personal control and supervision over the complaints received against members of the police force in the performance of their duties and enable the District Magistrate to ensure that the complaint is not a baseless or mala fide one and secondly to determine whether the complaint requires investigation by a police officer or by a selected magistrate. The procedure envisaged by the rule is for effective check being exercised against victimization of efficient and honest police officers on the one hand and favouritism being shown to the delinquent police officers on the other. These rules were not intended to replace and certainly cannot override the provisions of the Criminal Procedure Code.” The view taken by Hon’ble the Supreme Court in Raj 5 R.S.A. No. 1369 of 1987 Kumar’s case (supra) has further been followed in the case of State of Uttar Pradesh v. Surinder Pal Singh, (1989) 2 SCC 470. It is, thus, safe to conclude that the provisions of Rule 16.38 of the Rules are mandatory in character and the view taken by both the Courts below deserves to be upheld and the question of law is liable to be answered against the defendant-appellant State and in favour of the plaintiff-respondent. In view of the above, the appeal fails and the same is dismissed. . (M.M. KUMAR) November 27, 2009 JUDGE Pkapoor 6