IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 3206 of 2001 Date of Decision: February 20, 2009 State of Haryana and others ...Appellants Versus Satya Narain ...Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR Present: Mr. Sanjeev Kaushik, Addl. AG Haryana, for the appellant Mr. Chanan Singh, Advocate, for Mr. Puneet Bali, Advocate, for the respondent. 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? M.M. KUMAR, J. The State of Haryana has approached this Court challenging concurrent findings of fact recorded by both the Courts below holding that the departmental enquiry held against SI Satya Narain- respondent was without obtaining prior permission from the District Magistrate as per the requirement of mandatory Rule 16.38 of the Punjab Police Rules, 1934 (as applicable to Haryana) (for brevity R.S.A. NO. 3206 of 2001 'the Rules'). Both the Courts have held that in the ex-parte departmental proceedings the case property of five bottles of illicit liquor alleged to have been recovered from one Chandgi Ram son of Inder Singh, which constituted the basis for allegation of hushing up the case regarding recovery, was not produced and therefore in the absence of production of the case property the allegations levelled against the respondent were found to be without any evidence. The State of Haryana has approached this Court by filing the instant appeal under Section 100 of the Code of Civil Procedure, 1908 claiming that following two substantial questions of law would arise in the present appeal: “1. Whether in the facts and circumstances of the present case the proper sanction of the D.M. was taken before initiation of the enquiry against the plaintiff- respondent? 2. Whether in the facts and circumstances of the present case the department enquiry was conducted against the plaintiff/ respondent by following the principle of natural justice?” 2. The only document in support of the first question of law placed on record is Ex.D.1 which is stated to have been issued by an unknown District Magistrate, Fatehabad under Rule 16.38(1) of the Rules. However, at the time of exhibiting the document the witness was not able to adduce any evidence as to who had signed the aforesaid document. Examination of the document Ex.D.1 does not reveal the name of the District Magistrate who had accorded 2 R.S.A. NO. 3206 of 2001 concurrence for holding departmental enquiry against the plaintiff- respondent. Infact, after typing the word 'District Magistrate, Fatehabad' the document had been left without any signatures. Accordingly both the Courts below have not regarded the aforesaid document as sufficient evidence of according concurrence for holding of an enquiry against the plaintiff- respondent. Both the Courts below have rejected the argument that judicial notice of such unsigned document could be taken under Section 57 of the Evidence Act, 1872. For obvious reasons, Section 57 of the Evidence Act only talks of those facts of which the Court must take judicial notice. The provision has enumerated such facts viz., all laws in force in the territory of India and all public Acts passed or to be passed by the Parliament so on and so forth. The aforesaid documents are in public domain and are published to the public at large whereas the document regarding concurrence of the District Magistrate under Rule 16.38 of the Rules would not fall in the category of any such documents which have been enumerated by Section 57 of the Evidence Act. Therefore, the Courts below have rightly held that no judicial notice of the aforesaid document could be taken by the Courts. I find no reason to dis-agree with the aforesaid conclusion reached by the Courts below. 3. In the absence of any concurrence of the District Magistrate, the only question which survives for consideration is as to whether the enquiry could have been initiated against the plaintiff- respondent. In other words whether the concurrence by the District Magistrate is mandatory or directory. It would be appropriate to read sub-rule (1) of Rule 16.38 of the Rules, which is as under:- 3 R.S.A. NO. 3206 of 2001 “16.38. Criminal offences by police officers and strictures by courts - procedure regarding. (1) Where a preliminary enquiry or investigation into a complaint alleging the commission by an enrolled police officer or a criminal office in connection with his official relations with the public, establishes a prima facie case, a judicial prosecution shall normally follow. Where; however, the Superintendent of Police proposes to proceed in the case departmentally, the concurrence of the District Magistrate shall be obtained.” 4. A perusal of the aforesaid provision would show that in cases where preliminary inquiry or investigation into a complaint on the allegation of commission of criminal offence establishes, a prima facie case against an enrolled police officer, like the petitioner, then normally criminal prosecution is to follow. However, where the Superintendent of Police proposes to proceed in the case departmentally then ‘concurrence of the District Magistrate shall be obtained’. The aforesaid rule has been in force in both the states of Punjab and Haryana but the respondent State of Haryana incorporated an amendment on 22.7.1978. However, the amendment has not changed the legal position and the concurrence of the District Magistrate has to be regarded as mandatory particularly when the rule itself uses the expression ‘concurrence of the District Magistrate shall be obtained’. 5. The question is no longer res integra. This Court as 4 R.S.A. NO. 3206 of 2001 early as 1962 has held in the case of Jagan Nath v. Senior Superintendent of Police, AIR 1962 Pb. 38, that the rule is mandatory. The aforesaid judgment was considered by Hon’ble the Supreme Court in the case of Delhi Administration v. Chanan Shah , 1969 SLR 217. In para 8 of the judgment their Lordships’ observed as follows:- “8. In State of Uttar Pradesh v. Babu Ram Upadhya [1961) 2 SCR 6797 at pp. 711, 727-728] the Court by majority held at the provisions of paragraph 486 rule I of the U. P. Police Regulations were mandatory and that a departmental action against the police officer in disregard thereof was invalid. The minority held that the paragraph was directory and as there was substantial compliance with its provisions the departmental proceedings were not invalid. In Jagannath v. Sr. Supdt. of Police, Ferozepur AIR 1962 Punjab 38, the Punjab High Court held that the provisions of rule 16.38 (1) and (2) were mandatory and that a departmental inquiry held without following its provisions was illegal. It is not necessary to decide in this case whether the provisions of Rule 16.38 of the Punjab Police Rules are mandatory or directory. Even assuming that the rule is directory we find that there has been no substantial compliance with its provisions. The complaint fell within rule 16.38, and it was for the District Magistrate to decide who should 5 R.S.A. NO. 3206 of 2001 investigate the case. No investigation of any kind was made under his directions. Without obtaining his directions, the Superintendent of Police held an inquiry and passed an order of censure. The order was set aside by the Deputy Inspector-General. Thereafter by D. O. letter No. 2165-C, the Superintendent of Police asked for the sanction of the District Magistrate to proceed departmentally. Even at this stage, the District Magistrate was not informed that the Superintendent of Police held an inquiry an passed an order of censure and that, his order was set aside by the Deputy Inspector General. The inquiry held by the Superintendent of Police was not authorised by the District Magistrate nor did it receive his approval. The District Magistrate gave his sanction without recording any reasons and without applying his mind to the requirement of Rule 16.38. In the circumstances, we are constrained to hold that the departmental action taken against the respondent is invalid.” 6. The authoritative pronouncement on the aforesaid issue was made by the 5-Judge Constitution Bench in the case of Union of India v. Ram Kishan, (1971) 2 SCC 349, holding that the concurrence of the District Magistrate is mandatory. Similar view has been taken in the case of State of Punjab v. Raj Kumar, (1988) 1 SCC 701. In Raj Kumar’s case (supra), Hon’ble the Supreme 6 R.S.A. NO. 3206 of 2001 Court has virtually approved the ratio of the Full Bench judgment of this Court rendered in the case of Nand Nandan Sarup v. The District Magistrate, 1966 PLR 747. 7. Once the aforesaid legal position is clear then there is no escape from the conclusion that before proceeding with the departmental enquiry concurrence of the District Magistrate was mandatory and therefore the first question of law necessarily has to be answered against the State and in favour of the plaintiff- respondent. 8. The second question as to whether the production of case property was essential for recording a finding that plaintiff- respondent had allegedly hushed up the case of recovery of five illicit liquor bottles from Chandgi Ram son of Inder Singh by Balwinder Singh, HC, needs to be answered. The learned Additional District Judge has held that admittedly the case property was not produced during the departmental proceedings before the Inquiry Officer and no explanation was tendered by the department for not producing the case property which was an important piece of evidence to substantiate the allegations. Learned Additional District Judge is conscious of the fact that the Court is not to sit as a court of appeal while examining the finding recorded by the Inquiry Officer. However, it was found that the entire act of the department was based on the case property in the shape of five bottles of illicit liquor. The Court then proceeded to record the finding: “..... In the present case, the allegations against the plaintiff are that the plaintiff was posted as SHO in Police Station Sadar, Tohana, on 25.9.97. HC Balwinder 7 R.S.A. NO. 3206 of 2001 Singh allegedly recovered five bottles of illicit liquor from one Chandgi Ram and sent ruqa through constable Gurbachan in the Police Station for registration of a case. HC Balwinder Singh produced all the relevant papers including the case property as well as the accused in the Police Station. The plaintiff deputed HC Balwinder Singh for some official work in the town and let off the accused in his absence without registration of any case against the above stated accused. During enquiry proceedings, the Enquiry Officer examined HC Balwinder , constable Narsi, constable Sher Singh, constable Gurbachan and Chhotu Ram. Ruqa, recovery memo and site plan were also produced during enquiry, but there is no mention of case property in the entire enquiry. The appellate authority did not give much importance to it and held that the plaintiff cannot be exonerated merely on the ground that the case property was not produced in the enquiry and placing reliance upon the other documents passed the impugned order. In my view production of case property during enquiry proceedings was a very important factor and plaintiff should not have found guilty of mis-conduct merely on the basis of ruqa, memo and site plan and therefore the learned trial Court has rightly concluded that the case against the respondent was based on evidence and 8 R.S.A. NO. 3206 of 2001 resultantly the enquiry report against the respondent was perverse and has been rightly set aside by the learned trial Court.....” 9. In view of the aforesaid findings recorded by the Additional District Judge and in the absence of any other supporting evidence showing the recovery of illicit liquor it is not possible to reverse those findings which, in fact, are pure findings of fact. A perusal of the aforesaid extracted finding would show that the Inquiry Officer examined HC Balwinder Singh, Constable Narsi, Constable Sher Singh, Constable Gurbachan and Chhottu Ram. Ruqa, recovery memo and site plan produced before the Inquiry Officer did not record the factum of case property in the entire enquiry. In view of such scanty evidence it is not possible to conclude that the guilt of the plaintiff- respondent has been brought home. 10. The order of admission dated 16.8.2001 has not framed any substantial questions of law. It is highly doubtful whether such an appeal without framing of substantial question of law could be admitted. Without commenting any further on the aforesaid order of admission, I am of the considered view that the appeal is without any merit and is thus liable to be dismissed. 11. For the reasons afore-mentioned this appeal fails and the same is dismissed. (M.M. KUMAR) February 20, 2009 JUDGE okg/Pkapoor 9