R.S.A. No. 1661 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1661 of 1991 Date of decision: 26-7-2010 The State of Punjab and another ......... Appellants Vs Constable Gurjant Singh (dead) represented by his widow Sarbjit Kaur .........Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. P.C.Goyal, Additional Advocate General, Punjab for the appellants Mr. Rajinder Singh Aulakh, Advocate, for the respondent. HARBANS LAL, J. This appeal is directed against the judgment/decree dated 7.3.1991 passed by the court of learned Additional District Judge, Ferozepur whereby he accepted the appeal and decreed the suit for declaration to the effect that the impugned orders dated 1.1.1985, 3.2.1986 and 14.11.1986 passed by Senior Superintendent of Police, Deputy Inspector General of Police and Inspector General of Police respectively are illegal and ultra vires with consequential relief of seniority and arrears of pay etc .admissible to him from time to time according to law. The factual matrix is that the plaintiff had joined police department as a constable. In 1984, a departmental enquiry was launched against him on the allegation that on 27.4.1984 he was given one chit in the R.S.A. No. 1661 of 1991 2 name of Punjab Motor Stores by the Reserve Inspector of Police Lines, Ferozepur for getting the diesel measuring 100 litres filled in government vehicle on which he was a driver. He forged this figure 100 into 120. Vide order dated 1.1.1985 the Superintendent of Police, Ferozepur forfeited his one year approved service with permanent effect as punishment. He filed an appeal there-against and the same was also rejected on 3.2.1986 by the Deputy Inspector General of Police, Ferozepur. Again he filed a revision to the Inspector General of Police, Punjab, Chandigarh who also dismissed it on 14.11.1986. That the order dated 1.1.1985 is illegal, null and void and ineffective upon the rights of the plaintiff for the reason that proper procedure was not followed by the punishing authority, while holding the enquiry; the procedure provided in Rule 16.24 of the Punjab Police Rules was ignored; that there is no evidence that the cutting was made by the plaintiff, nor the chits were recovered from his possession; that even Motor Training Officer(MTO) was dealt with departmentally for the same lapse; that the procedure for taking diesel from petrol pump is that three chits are issued by the officer out of which one chit remains in the custody of M.T.O. as permanent record, whereas two other chits are given to the owner of the petrol pump while drawing the diesel and the owner of the petrol pump attaches one chit with the bill/claim and the other remains with him; that the chits in the custody of M.T.O. were not produced during the enquiry; that the copy of the chit having not been provided to the plaintiff he could not cross-examine the witnesses effectively; that the log book was also not produced during evidence and as per entry in the same there is no bungling; R.S.A. No. 1661 of 1991 3 that the order is non-speaking as the evidence adduced by the plaintiff, has not been discussed therein; that the enquiry officer examined witnesses, whose names were not mentioned in the list of witnesses and the plaintiff was also not allowed to produce whole of his defence; that the enquiry officer himself had cross-examined the witnesses and then he played the role of Judge as well as prosecutor which is against the spirit of law; that the findings of the enquiry officer are based on the material which is not in evidence and wrong inferences were drawn by the authorities; that the documents were produced by the witnesses for the first time, when their evidence was recorded. On these allegations, the suit has been filed for declaration to the effect that the orders dated 1.1.1985, 3.2.1986 and 14.11.1986 being illegal, null and void are liable to be set aside and the plaintiff is entitled to the relief in the form of arrears, seniority etc. The defendants in their joint written statement have inter alia pleaded that the impugned orders are legal and valid having been passed in accordance with rules and natural justice; that proper procedure was adopted; that chit was issued by Reserve Inspector under his signatures and the plaintiff had signed on the backside of the chit and after doing cutting he gave the same to the Punjab Motor Stores; that opportunity was given to the plaintiff to inspect the chit which was on the enquiry file. On the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether the order dated 1.1.1985 passed by the Superintendent of Police, Ferozepur and that of D.I.G. Ferozepur dated 3.6.1986 and R.S.A. No. 1661 of 1991 4 of Inspector General of Police dated 14.11.1986 is illegal, null and void and inoperative against the rights of plaintiff?OPP 2. Whether the suit is not maintainable in the present form?OPD 3. Whether the suit is bad for non-joinder of necessary parties?OPP 4. Whether the suit is time barred?OPD. 5. Whether no valid notice under Section 80 C.P.C.was served before the registration of the suit?OPD 6. Relief: After examining the evidence and hearing the learned counsel for the parties, the learned trial Court dismissed the suit as noticed at the outset. Feeling aggrieved therewith, the plaintiff went up in appeal, which was accepted by the court of learned Additional District Judge, Ferozepur as noticed hereinbefore. Being dissatisfied therewith, the defendants have preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. P.C.Goyal, learned Additional Advocate General, Punjab submitted with a good deal of force that the learned Lower Appellate Court has wrongly interpreted Punjab Police Rule 16.38 for the reason that this rule comes into play only when the offence is committed by a police officer with the public. In this case, the plaintiff-respondent had tampered with the chit issued for getting the diesel filled in the departmental vehicle No. PUF 1009. There was no complaint from the member of the public. The sanction of the District Magistrate under the said rule was not required. As is well R.S.A. No. 1661 of 1991 5 settled, the courts are not to sit in appeal in such matters. The plaintiff- respondent was given a chit of 100 litres of diesel. He converted this figure into 120 by tampering with it. To overcome these submissions Mr. R.S.Aulakh, Advocate on behalf of the plaintiff-respondent maintained that in view of State of Punjab Vs. Raj Kumar AIR 1988 SC 805, Hari Shyam Vs. State of Punjab & Others 1991(1) Criminal Law Journal (Civil, Criminal and Revenue 264, and Ashok Kumar Sub Inspector of Police Vs. State of Punjab and Others 1990 (3) Services Law Reporter 127, the matter should have been reported to the District Magistrate as required under Punjab Police Rule 16.38. After preliminary enquiry, he would have decided whether the departmental enquiry is to be held or criminal prosecution has to be launched. The non-compliance of the said rule, renders the order impugned as illegal. I have given a deep and thoughtful consideration to the rival contentions. In Raj Kumar's case (supra) “one Jamuna Devi Mukhtiar Kaur gave a report against the respondent, who was an Assistant Sub Inspector in the Punjab Police Service, to the Deputy Superintendent of Police, Patiala alleging demand of illegal gratification of Rs.200/- by him for releasing her husband and brother on bail bonds in a case pertaining to a land dispute. A first information report was registered and a trap was laid for the respondent and he was apprehended as soon as the marked currency notes treated with phenolphthalein were handed over to him and the marked currency notes were recovered from him. After completion of investigation, R.S.A. No. 1661 of 1991 6 the respondent was charge-sheeted before Special Judge, Sangrur.” Rule 16.38 of Punjab Police Rules, 1934 reads as under:- “16.38. Criminal offences by police officers and strictures by Courts-Procedure regarding-(1) 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 (Executive Magistrate)” It is plain and patent from the above language that it is the District Magistrate who, on receipt of information regarding the commission of a criminal offence by a police officer in connection with his official relations with the public, is to decide whether investigation of the complaint shall be conducted by a police officer or made over to a Magistrate having first class powers. If a prima facie case is established, then a judicial prosecution has normally to follow. It is also for the District Magistrate to decide, whether instead of a judicial prosecution, the matter should be disposed of departmentally. Rule 16.38 lays down the guidelines of the procedure to be followed, when a Superintendent of Police receives any complaint about the commission of a criminal offence by a police officer “in connection with his official relations with the public”. In turn, he is obligated to give immediate information to the District Magistrate. In the R.S.A. No. 1661 of 1991 7 instant one, the allegations against the plaintiff-respondent are that the chit which was issued to him for getting the diesel filled in the government vehicle of which he was a driver was tampered with by him by converting the figure 100 litres diesel into 120. Thus, to my mind, this cutting or forgery has no connection with the public. A fortiori, the complaint in this behalf was not made by any member of the public. Thus, obviously the facts of Raj Kumar's case (supra) are distinguishable from the one in hand. In Hari Shyam's case (supra), the petitioner consumed liquor alongwith the prisoners as a result of which the officers of the Jail Faridkot refused to accept the prisoners. So, in that case also, the Police Officer had committed the offence in connection with his official relation with the public. In Ashok Kumar's case (supra), the petitioner while posted in the Detective Staff, Amritsar was reported to be in league with smugglers/anti social elements of Amritsar and passing classified information of vital importance to them to carry out their anti social activities. Axiomatically, the facts of these cases are distinguishable from the one in hand. Consequently, the learned Appellate Court had fallen in error in holding that Rule 16.38 is applicable to the facts of this case. Sequelly, this finding is reversed. The next question which arises for consideration is as to whether the enquiry has been conducted in adherence to the Punjab Police Rules. The enquiry file is Ex.P-1 in which the charge-sheet finds place at page 1. A meticulous perusal of it, would reveal that there is no charge to the effect that the plaintiff-respondent has converted the figure 100 litres of diesel on the chit into 120 by making cutting in it. It has been merely R.S.A. No. 1661 of 1991 8 mentioned that on 27.4.1984 Reserve Inspector Police Lines, Ferozepur had issued a chit in the name of Punjab Motor Stores authorizing Gurjant Singh (referring to the plaintiff) to get the diesel filled in Government Vehicle No. PUF 1009 and later on, he had made cutting in this chit. What cutting, has no where been mentioned in it. Further, Sukhdev Raj Khanna, Punjab Motor Store PW-2 has stated in his cross-examination that as and when any Government vehicle comes for getting fuel filled in it, it is also accompanied by officer of M.T.O. Line or Reserve Inspector. Munshi Ram PW-3 has deposed in his cross-examination that he does not know who had made the alleged cutting. It is in the cross-examiantion of Dalbir Singh HC PW-4 that oil in the log book stands entered according to the 'parchi'. There is no evidence worth the name to the effect that the alleged cutting or forgery was made by the plaintiff. The list of witnesses is available at page 3 of Ex.P-1, wherein name of HC Major Singh PW-1 does not figure but nonetheless, he has been examined. As per the rules, the punishing authority is obligated to supply list of the witnesses to the delinquent employee to enable him to prepare his defence. Here in this case, the approved service of the plaintiff for one year has been forfeited. Rule 16.5 sub rule (2) reads as under:- “16.5. Stoppage of increments-or Forfeiture of approved service for increment. The increment of a police officer on a time-scale may be withheld as a punishment. The order must state definitely the period for which the increment is withheld, and whether the postponement shall have the effect of R.S.A. No. 1661 of 1991 9 postponing future increments. The detailed orders regarding the grant and stoppage of increments are contained in rule 13.2 (2) Approved service for increment may be forfeited, either temporarily or permanently, and such forfeiture may entail the deferment of an increment or increments or a reduction in pay. The order must state whether the forfeiture of approved service is to be permanent; or, if not the period for which it has been forfeited. (3)Reinstatement on the expiry of a period fixed under sub-rule (1) or (2) above shall be conditional upon good conduct in the interval, but, if it is desired under this rule not to reinstate an officer, a separate order shall be recorded after the officer concerned has been given opportunity to show cause why his reinstatement should not be deferred, and the period for which such order shall have effect, shall be stated. Rules regarding the method of recording punishments under this rule in seniority rolls are contained in Chapter X.” Rule 16.2 of Punjab Police Rules and the Table appended thereto in so far as is relevant for the decision of this cases reads as under:- “16.1 Authorized punishments.(1) No police officer shall be departmentally punished otherwise than as provided in these rules. (2) The departmental punishments mentioned in the second column of the subjoined table may be inflicted on officers of the various ranks shown in the heading Nos.3 to 6, by the officers named below each R.S.A. No. 1661 of 1991 10 heading in each case, or by any officer of higher rank:- Sr. No. Departmental punishment Inspectors Sergeants, Sub Inspectors and Assistant Sub Inspectors Head Constables Constables 1 xx xx xx xx xx 2 xx xx xx xx xx 3 Stoppage of increment or forfeiture of approved service for increment Assistant Inspector General, Government Railway Police, Superintende nt of Police, Assistant Inspector General of Police (Traffic) Superintendents of Police. Also Deputy Superintendent (Administrative), Government Railway Police and (as regards Sub Inspectors and Assistant Sub Inspectors only), Deputy Superintendent incharge of Railway Police Sub Division and Officer-in-charge of the Police Recruits Training Centres, Amritsar Superintendent of Police, also Senior Assistant Superintendent of Police, Lahore, Deputy Superintendent (Administrative) Government Railway Police, Deputy Superintendent incharge of Railway Force . Sub Division and Officer-in- Charge of the Police Recruits Training Amritsar Superintendent of Police, Deputy Superintendent (Administrative) Government Railway Police. Deputy Superintendent incharge of Railway Police Sub Divisions, Senior Assistant Superintendent of Police, Lahore. Officers- in-charge of Recruits Training Centres 4 xx xx xx xx xx It is crystal clear from the above table that approved service can be forfeited only for increment. This table is absolutely silent that the simpliciter order for forfeiture of service can be passed. To add further to it, this Rule no where says that approved service of a police personnel with permanent effect can be forfeited. In Punjab State Vs. Joginder 1992(2) Service Cases Today 671 P&H, this High Court has held as under:- “Rule 16.2 of the Punjab Police Rules Specifies certain kinds of punishments to be inflicted but nowhere lays down that approved service of a police personnel with permanent effect can be forfeited. The defendants cannot take advantage from R.S.A. No. 1661 of 1991 11 column No.3 of Rule 16.2 of the Rules wherein punishment of stoppage of increment or forfeiture of approved service for increment can be inflicted. The punishment of stoppage of increment or forfeiture of approved service for increment cannot be interpreted to mean that the approved service of a police official with permanent effect can be forfeited. Approved service for increment can be forfeited but not the approved service for a period of three years with permanent effect affecting the rights of a police constable for the purposes of gratuity, pension and seniority. The underlying object in not vesting the authorities, under the above mentioned provisions, with powers to forfeit approved service with permanent effect appears to be that an official should not suffer for all times to come in the matter of gratuity, pension and seniority, otherwise, there was no difficulty in making such a provision. In somewhat similar circumstances Delhi High Court in Ram Pat Vs. Union of India and Others, 1984(3) SLR 756 did not approve the action of the authorities by which the approved service of a police official for one year permanently entailing reduction in pay was forfeited.” If the matter is examined in the backdrop of the afore extracted observations the impugned order cannot be sustained. In Nanjundaradhya Vs. Enquiry Authority 1985(3) Services Law Reporter 592 it has been held as under:- R.S.A. No. 1661 of 1991 12 “There is no penalty, by way of forfeiting the past service, which is indicated as one of the penalties which could be imposed against a railway servant. Therefore, in exercise the power to impose a penalty the Disciplinary Authority or the Appellate Authority or the Revisional Authority have to select one or the other penalties specified in Rule 6. Forfeiture of past service not being one of the penalties prescribed under Rule 6, no such penalty could be imposed in a disciplinary proceeding.” Further in State of Punjab Vs. Inder Sain Sharma P.S.I. (Law Inspector) 1968 Service Law Reporters 519 the police officer was imposed penalty of stoppage of increment under Section 7 of the Pepsu Police Act which did not contain this penalty. It was held by this Court that no such penalty could be imposed as it did not exist in the Act. On viewing the matter in the light of the law laid down in these authorities, the impugned order cannot be upheld for the reason that the penalty imposed upon the plaintiff-appellant does not exist in Rule 16.2 of Punjab Police Rules under which the impugned order has been passed. Here in this case, the approved service of the plaintiff for two years has been forfeited. Punjab Police Rule 16.1 contemplates that no police officer shall be departmentally punished otherwise than as provided in these rules. It can be reasonably and legitimately culled out from rule 16.2 of Punjab Police Rules that the punishing authority, while passing the order shall state therein, whether the postponement shall have the effect of R.S.A. No. 1661 of 1991 13 postponing future increments. In the impugned order dated 1.1.1985 it has no where been mentioned as to whether or not the postponement shall have the effect of postponing future increments. The period of forfeiture with specific dates has also not been mentioned in the said order. The object of the Rule is not to vest the authorities with the powers to forfeit the approved service with permanent effect. The object in fact is that the official should not suffer all times to come in the matter of gratuity, pension and seniority as ruled in Joginder's case supra. Thus the impugned order has not been passed in consonance with the provisions of Punjab Police Rule16.5. On examining the enquiry file in its entirety, it transpires that the rules as were applicable to this case have not been adhered to. More to the point, the impugned order is not in tune with the rules referred to hereinbefore. As a sequel of the above discussion, this appeal fails and is dismissed with no order as to costs. (HARBANS LAL) JUDGE July 26, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes