REGULAR SECOND APPEAL NO.294 OF 1993 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 24, 2010 State of Punjab and others .....Appellants VERSUS ASI Gurmukh Singh ....Respondent 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: Ms. Ambika Luthra, AAG, Punjab, for the appellants. Mr. S. K. Sharma, Advocate, for the respondent. **** RANJIT SINGH, J. Respondent-plaintiff was proceeded against with the allegation that on the intervening night of 18/19.9.1985, he kept a woman (whose identity was never established) in his residential premises for an immoral purposes. The second charge against him was that he had occupied Government accommodation but at the same time had obtained house rent allowance also. In the preliminary enquiry, both the charges were proved and the Enquiry Officer gave a report on 12.10.1985, recommending REGULAR SECOND APPEAL NO.294 OF 1993 :{ 2 }: that reference be made to the district Magistrate for sanction under rule 16.38 (i) of Punjab Police Rules. The matter was referred to District Magistrate, who passed the following order:- “I, Inderjit Singh IAS, District Magistrate, Ferozepore, in exercise of the powers under PPR 16.38(i) hereby order that enquiry against ASI Ram Parkash No.227/GRP and ASI Gurmukh Singh No.1830 GRP be conducted by a Gazetted Police Officer to be appointed by the Deputy Inspector General of Police, Railways, Punjab, Patiala.” The enquiry was subsequently got conducted by an Enquiry Officer appointed by Assistant Inspector General of Police, Railways, Punjab vide letter No.2133/AC-1 dated 8.2.1986. The charges against the respondent-plaintiff were proved in the said enquiry. A show cause notice proposing penalty of reduction in rank to the post of Head Constable was thereafter issued to the respondent-plaintiff. Ultimately, Assistant Inspector General, Government Railways Police, Punjab, passed an order on 6.8.1987, forfeiting three years approved service of the respondent-plaintiff on permanent basis. Respondent-plaintiff filed an appeal against this order, which was rejected by the Inspector General of Police on 3.5.1988. Thereafter, the respondent-plaintiff had filed a suit, challenging the order dated 6.8.,1987 and 3.5.1988 on various grounds. The material ground of challenge was that no sanction was obtained under Rule 16.38 (1) of the Police Rules, which was the essential requirement under law. Subsequently, however, a different plea appears to have been pursued by saying that the District Magistrate had directed the REGULAR SECOND APPEAL NO.294 OF 1993 :{ 3 }: enquiry be conducted by a Gazetted Police Officer to be appointed by Deputy Inspector General of Police, Railways but the Enquiry Officer was appointed by the Assistant Inspector General of Police, Railways, which was illegal vitiating the enquiry as such. The appellants had, however, defended the suit by pointing out that respondent-plaintiff had kept a woman in his quarter, which is contrary to the Service Rules. It was urged that the allegations were established during enquiry and, thus, the punishment imposed was legal and justified. The Trial Court framed the following issues:- “1. Whether the suit is not properly valued for the purposes of court fee as alleged? OPD 2. Whether the suit has not been properly framed as alleged? OPD 3. Whether the notice served under Section 80 C.P.C. is valid? OPD 4. Whether the claim of the plaintiff is not justiciable and he has no cause of action to file the suit as alleged?OPD 5. Whether the order dated 6.8.87 of the Assistant Inspector General of Police and rejection of the appeal of the plaintiff by the I.G. Police on 3.5.1988 is illegal, unconstitutional, null and void as alleged? OPD 6. Whether the plaintiff is entitled to the declaration prayed for? OPP 7. Relief.” The Trial Court clubbed issues No.4,5 and 6 and decreed REGULAR SECOND APPEAL NO.294 OF 1993 :{ 4 }: the suit on the ground that the provisions of Rule 16.24 (ix) of Punjab Police Rules were violated. This finding, however, was reversed by the first Appellate Court by observing that this Rule would apply to the cases where the punishment of dismissal is passed and since the punishment awarded to the respondent-plaintiff was forfeiture of service, there was no need to comply with the requirement of Rule 16.24 (ix) of Punjab Police Rules. The Court, however, went at tangent to hold that provisions of Rule 16.38 (i) were violated inasmuch as the Enquiry Officer was not detailed by the D.I.G as was directed by the District Magistrate and hence, entire enquiry proceedings culminating in the order of dismissal, was illegal and without jurisdiction. The State counsel would point out that the first Appellate Court has allowed the appeal on the ground, which was neither considered nor pleaded before the Court or in the pleadings. The counsel would also point out that as per the Punjab Police Rules, the appointing authority of the respondent-plaintiff was Superintendent of Police and, therefore, the appointment of Enquiry Officer by Assistant Inspector General of Police, who was higher in rank to Superintendent of Police was legal and valid. The substantial question of law had accordingly been so formulated by the State and these were to the following effect:- “ 1. Whether the Assistant Inspector General of Police was competent to appoint Enquiry Officer, even though as per order, Annexure P-7, enquiry was to be conducted by Deputy Inspector General of Police, Railways, Punjab, Patiala? REGULAR SECOND APPEAL NO.294 OF 1993 :{ 5 }: 2. Whether the respondent could be allowed to take up new ground in appeal before the learned Appellate Court?” The first question of law as formulated by the State obviously was for not conducting the enquiry by D.I.G. There was no direction for conducting enquiry by D.I.G. The enquiry was only required to be ordered by D.I.G in terms of the directions issued by the District Magistrate, reference to whom was made under Rule 16.38 of the Punjab Police Rules. The ground pleaded in the suit was that no sanction under mandatory provisions of the Punjab Police Rules 16.38 (1) has been obtained from the D.M. concerned. Plea, therefore, was that the enquiry proceedings were without jurisdiction. Thus, the case set up in the plaint never was that the sanction was obtained from the District Magistrate and the direction contained in the sanction was not followed. In the reply filed, the contents of this sub para of the plaint, where this fact was pleaded, were denied being wrong. It was submitted that the requisite sanction under Rule 16.38 (1) was obtained from the District Magistrate on 31.1.1986 and, thus, the enquiry proceedings were said to be within jurisdiction and legally valid. The respondent-plaintiff in his evidence did not make any grievance in regard to violation of Rule 16.38 and rather he had produced the copy of the order under this Rule, which was exhibited as Ex.P7. During his cross-examination, he had stated as under:- “I do not know whether sanction under Section 16.38 of REGULAR SECOND APPEAL NO.294 OF 1993 :{ 6 }: P.P.R Rule was obtained before initiating the departmental preliminary enquiry or regular enquiry.” It can, thus, be stated that the respondent-plaintiff had pleaded violation of Rule 16.38 and not that the sanction was not properly obtained and that enquiry was required to be ordered by D.I.G. The first Appellate Court, however, has held that the enquiry held in this case was illegal and without jurisdiction only on the ground that it was not ordered by D.I.G but by Assistant Inspector General of Police. The question may, thus, arise whether the first Appellate Court was justified in going into a question in the manner it was never raised in the suit or was pleaded. The first appellate Court in my view was not justified in setting up entirely a different case on behalf of the respondent-plaintiff while deciding the appeal filed by the State and dismissing the appeal even after reversing the finding given by the Trial Court, which had allowed the suit due to violation of Rule 16.24 of Punjab Police Rules. It may need appreciation that the first Appellate Court was deciding the appeal filed by the State and not by the respondent- plaintiff. Accordingly, the question of law as formulated by the State as to whether the respondent could be allowed to take up new grounds in appeal before the Appellate Court, would be out of place as no such ground was ever raised by the respondent-plaintiff, the Ist appeal being by the State. The first Appellate Court apparently failed to consider this aspect whether there was any need to comply with the requirement of Rule 16.38 of Punjab Police Rules. In response to a specific REGULAR SECOND APPEAL NO.294 OF 1993 :{ 7 }: query, counsel for the respondent-plaintiff clearly conceded before the Court that no FIR in this case had been registered against the respondent-plaintiff for any offence. The heading of Rule 16.38 clearly gives an indication where this provision may be attracted, and it reads:- “Criminal offences by police officers and strictures by Courts-procedure regarding.” Rule 16.38(1) of the Punjab Police Rules is as under:- “Immediate information shall be given to the District Magistrate of any complaint received by the Superintendent of Police, which indicates the commission by a police officer of a criminal offence in connection with his official relations with the public. The District Magistrate will decide whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected Magistrate having 1st class powers.” The Superintendent of Police is required to give information to the District Magistrate regarding any complaint, which indicates the commission of criminal offence by a police officer, which is in connection with his official relation with the public. From the nature of allegations and the charges levelled against the respondent-plaintiff, it can not be made out that there was any allegation of any criminal offence in connection with official relations of the respondent-plaintiff with public. It will be, thus, a moot point if the provisions of Rule 16.38 were attracted to the facts of the case or not. Be that as it may, the information was given to the District REGULAR SECOND APPEAL NO.294 OF 1993 :{ 8 }: Magistrate and as per the Rule, the District Magistrate was to decide whether the investigation of the complaint shall be conducted by police officer or made over to a selected Magistrate. This will also give an indication that it is in regard to the investigation of a criminal offence where the information was required to be given to the District Magistrate for him to decide if the investigation could be carried out by the police or it was required to be handed over to the Magistrate. The District Magistrate had taken a decision to allow the police to carry out the investigation or enquiry. Thereafter, it was for the competent authority to proceed with the enquiry. It was not appropriate for the District Magistrate to issue direction as to who was required to order enquiry in this case. District Magistrate would not have any power or jurisdiction to change the officer who was under law competent to order enquiry. D.M could only decide, if police or Magistrate is to investigate etc. It is not possible to hold that enquiry was without jurisdiction more so when no such plea was ever raised in the suit. The view taken by the first appellate Court, thus, can not be sustained. Faced with this situation, Mr.S.K.Sharma, appearing for the respondent-plaintiff, started raising number of other pleas to challenge the order of punishment against respondent-plaintiff. Counsel submits that the respondent-plaintiff was not afforded hearing while passing the impugned order. Counsel pleads that the appointing authority of the respondent-plaintiff was D.I.G and not the S.P and hence, the order of punishment and enquiry was bad. The counsel has, thus, rambled various pleas and has cited various judgments without realising that there was no appeal or cross- REGULAR SECOND APPEAL NO.294 OF 1993 :{ 9 }: objection filed by the respondent-plaintiff. The question of law, as formulated by the State, as to whether the respondent-plaintiff could raise any points, which were not earlier urged by him before the Court, may, thus, arise. To tide over this situation, Mr.Sharma made reference to Order 41 Rule 33 C.P.C., which makes a provision that the Appellate Court shall have power to pass any decree and make any order, which ought to have been passed or made and to pass or make such further or other decree or order as the case may require. The Rule further says that this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may where there have been decrees in the cross suit or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. In exercise of power under this Rule, the Court has the power to pass any order or decree, which ought to have been passed. There is neither any pleading nor the material on the basis of which the pleas as are being made by the counsel for the respondent-plaintiff would show that any decree or order ought to have been passed, as is being pleaded. The Court may have the enabling power but it would not be possible to exercise such power in the absence of the pleadings. In Mahant Dhangir and another Vs. Sh.Madan Mohan and others, AIR 1988 Supreme Court 54 it is observed that the question raised must properly arise out of the judgment of the lower court. The pleas, REGULAR SECOND APPEAL NO.294 OF 1993 :{ 10 }: thus, can not be considered. There would, thus, be no need to refer to the number of precedents cited by the counsel in haphazard and rambling manner without making much sense. Net result is that a substantial question of law would arise in this case as to whether the plea which was not even raised or which is not made out from the record could be so considered to allow the appeal. The judgments under appeal can not be sustained as the appeal by the Court was allowed on the ground, which was neither pleaded nor urged. The Regular Second Appeal is allowed and the judgments passed by both the Courts below are set-aside. May 24, 2010 ( RANJIT SINGH ) khurmi JUDGE