IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 2068 of 2008 Judgment reserved on: 23.9.2010 Date of decision: 27.9.2010 Hari Singh ….. Petitioner. Vs. State of H.P. and another …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. Sunny Datwalia, vice Mrs. Ranjana Parmar, Advocate. For the Respondents : Ms. Ruma Kaushik, Additional Advocate General. Kuldip Singh, Judge. The petitioner has prayed for quashing of punishment order dated 20.4.1990, Annexure A-13, appellate order dated 9.11.1990 Annexure A-15 and revisional order dated 27.12.1991 Annexure A-1. 2. The case of the petitioner is that he was initially inducted as a constable on 2.8.1960 and was promoted as Head Constable in April, 1967. He was promoted as Assistant Sub-Inspector in the year 1976 and then as Sub Inspector in May 1986 and was confirmed as Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… such in the year 1988. It is also his case that till 1989 no adverse entry was ever communicated to him. 3. On 24.8.1989 the petitioner was suspended by Superintendent of Police, District Shimla, departmental inquiry was simultaneously ordered regarding misbehaviour with Lt. Col (Retired) H.S. Gyani and his illegal detention in police custody. The inquiry officer was appointed on 24.8.1989. The summary of allegations letter dated 31.8.1989 was served upon the petitioner; he submitted his reply on 5.9.1989 and denied the same. The additional reply to the summary of allegations was also submitted by the petitioner on 5.9.1989. In the reply, the petitioner took preliminary objection regarding non-compliance of Police Rules 16.38. 4. The charge sheet was served upon the petitioner on 28.11.1989 which relates to alleged occurrence of 21.8.1989 night in the Reporting Room, Shimla. It was alleged that petitioner misbehaved with Lt. Col. (Retired) H.S. Gyani. The petitioner submitted the reply to the charge sheet on 12.12.1989. The petitioner submitted that criminal case had already been instituted against the petitioner and therefore, departmental inquiry be stayed till the decision of the criminal case. 5. The inquiry officer submitted his findings on 13.12.1989. A show cause notice dated 18.12.1989 was issued to petitioner, he was called upon to submit representation, if any, within 15 days. The petitioner submitted representation dated 27.1.1990 wherein he again highlighted Police rules 16.38(1). He also made a grievance regarding the non-supplying of inquiry report. The copy of …3… conclusion of inquiry was supplied to the petitioner. Thereafter petitioner submitted supplementary reply to the show cause notice in which the petitioner has submitted that complete copy of inquiry report has not been supplied to him, only copy of findings/conclusions has been supplied. 6. The petitioner filed OA No.165 of 1990 in the erstwhile Tribunal aggrieved by simultaneous two proceedings against the petitioner i.e. criminal case as well as departmental inquiry. The said OA was withdrawn in April, 1990. 7. The Superintendent of Police, District Shimla on 20.4.1990 had imposed penalty of dismissal from service. The petitioner had filed appeal before Dy. Inspector General of Police, Southern Range who on 9.11.1990 decided the appeal and punishment of dismissal was changed into punishment of forfeiture of 4 years approved service with permanent effect. The petitioner thereafter filed revision which was dismissed by Director General of Police on 27.12.1991. 8. The criminal case No.118/2 of 89 which was initiated on the basis of a private complaint was disposed of by Chief Judicial Magistrate, Shimla on 22.6.1992 in favour of petitioner. It is the case of the petitioner that inquiry officer held the charges framed against the petitioner as not proved in his conclusion in inquiry but Superintendent of Police, District Shimla proposed a penalty of dismissal from service vide order dated 22.12.1989 and ultimately penalty was imposed on 20.3.1990 by Superintendent of Police, District Shimla. …4… 9. The Superintendent of Police, District Shimla communicated adverse remarks of ACRs to the petitioner for the period 1.4.1989 to 31.3.1990 vide order dated 5.9.1991. The petitioner made a representation against the adverse remarks to Dy. Inspector General of Police, Southern Range on 21.5.1991 and the adverse remarks were expunged from the service record of the petitioner vide order dated 29.8.1991. 10. The petitioner has assailed the impugned orders on the grounds that impugned orders are arbitrary, unjust, illegal, malafide against the statutes and based on no evidence. The past conduct of the petitioner was wrongly relied. The Rule 16.38 of Punjab Police rules as applicable to Himachal Pradesh Police has been violated. The inquiry report was not supplied to petitioner but only findings were supplied which did not include any discussion of evidence. 11. The respondents contested the petition by filing reply. It has been submitted that petitioner was censured four times prior to 1989 as per the entries made in his service record. The Rules 16.38 relied by the petitioner is not applicable. The petitioner was not on duty at the time when he misbehaved with Lt. Col. (Retired) H.S. Gyani. In these circumstances it was not necessary to refer the matter to District Magistrate as provided in Police Rules 16.38. The petitioner had filed OA No.165 of 1990 praying therein that the respondents be restrained from passing any order in the impugned departmental inquiry. The OA No.165 of 1990 was dismissed by the erstwhile Tribunal on 18.4.1990. The inquiry has been conducted in accordance with Punjab Police Rule as applicable to the State of …5… Himachal Pradesh. The disciplinary authority heard the petitioner personally before passing punishment order. 12. The departmental inquiry vide order dated 15.7.1989 was initiated for misconduct i.e. for allegedly fabricating the evidence in a criminal case while the petitioner was posted at Police Station, West Shimla. The inquiry for this lapse on the part of the petitioner was conducted by Brij Lal Sharma, Deputy Superintendent of Police who exonerated the petitioner of the charges. The punishing authority after going through the evidence brought on record did not agree with the findings of inquiry officer and passed the punishment order and reduced the petitioner from the rank of Sub Inspector to Assistant Sub-Inspector. However, this order was set aside by Dy. Inspector General of Police, Southern Range in the appeal preferred by the petitioner. The respondents No.1 and 2 have taken the stand that show cause notices were issued by disciplinary authority for various lapses to the petitioner in the past. The respondents No.1 and 2 supported the impugned order. The petitioner filed rejoinder and reiterated his stand after denying the defence put forth by the respondents. 13. I have heard the learned counsel for the parties. As per summary of allegations against petitioner he was present in civil dress in Police Assistance Room/Police Control Room, Shimla on 21.8.1989 in the night after his duty was over. He kept illegally in the police custody, abused and gave beatings by hand and stick to retired Lt. Col. H.S. Gyani, despite his having shown his identity card, who was brought there by some constables. The said Act of petitioner …6… was not lawful and same was not expected from police officer, which is punishable under Section 7 of Police Regulations, 1861. The inquiry officer recorded a finding that it has been clearly established on the basis of statement of prosecution witness and medical certificate that the allegations levelled by Lt. Col. (Retired) H.S. Gyani against petitioner are not baseless. The petitioner was present in the Police Control Room after completion of his duty; he definitely misbehaved with Lt. Col. (Retired) H.S. Gyani and gave him beatings. Mr. H.S. Gyani lodged a report in Police Station, Sadar, Shimla regarding beatings given by petitioner which has been proved from medical certificate. 14. The show cause notice dated 18.12.1989 proposing the punishment of dismissal from service was given to petitioner by the disciplinary authority after considering the evidence on record. The petitioner had filed reply to the show cause notice wherein he has relied Rule 16.38 (1) of Punjab Police Rules, as applicable to Police in Himachal Pradesh. He has also raised the grievance that no copies of findings of inquiry officer were supplied to him. The petitioner has not taken specific plea of prejudice though he has stated that he was handicapped in making his proper statement in reply to show cause notice in absence of inquiry report. The letter dated 20.3.1990 Annexure A-11 indicates that a copy of conclusions of inquiry was supplied to the petitioner. The petitioner submitted the reply dated 8.4.1990 after receiving the conclusions of inquiry report vide letter dated 20.3.1990. In the reply dated 8.4.1990 the petitioner has stated that inquiry report has not been supplied to him, but he …7… has not specifically stated that even after receipt of copy of conclusions of inquiry report he is not in a position to file effective reply which has caused prejudice to him. 15. The disciplinary authority on 20.4.1990 had passed the order of dismissal of petitioner from service after hearing him personally. In appeal the Dy. Inspector General of Police had modified the punishment to forfeiture of four years approved service with permanent effect. The period of suspension and dismissal shall be treated as period spent on duty and the petitioner will get all the benefits arising out of this order. The Director General of Police in revision on 27.12.1991 has affirmed the order dated 9.11.1990 of Dy. Inspector General of Police. 16. The petitioner has raised the question of non-supplying of inquiry report. In Union of India and others Vs. Mohd. Ramzan Khan (1991) 1 SCC 588 the Supreme Court has held that supply of inquiry report along with recommendation, if any, before the punishment proposed to be inflicted is necessary. It was also held that non-furnishing of the inquiry report amounts to violation of principle of natural justice. In Managing Director, ECIL, Hyderabad Vs. B. Karunakar (II) (1994) Supp (2) SCC 391 it has been held that Union of India vs. Mohd. Ramzan Khan (1991) 1 SCC 588 was decided on 2.11.1990, the order of dismissal of the respondent is for earlier to the said dated. In the circumstances, the dismissal order cannot be said to be vitiated by non furnishing of Enquiry Officer’s report. In the present case the punishment order was passed by disciplinary authority on 20.4.1990, therefore, in view of Managing Director, ECIL, Hyderabad (supra) non supply of …8… inquiry report to petitioner would not vitiate the inquiry. In any case copy of conclusions of inquiry officer’s report was supplied to petitioner and after receipt of those conclusions the petitioner filed additional reply in which he had not taken specific plea of prejudice for want of full copy of inquiry report. 17. The Supreme Court in Sarva Uttar Pradesh Gramin Bank vs. Manoj Kumar Sinha (2010) 3 SCC 556 has held as follows:- “Thereafter, this Court notices that development of the principle that prejudice must be proved and not presumed even in cases where procedural requirements have not been complied with. The Court notices a number of judgments in which the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant. Ultimately, it is concluded as follows: ( Haryana Financial Corpn. Case, SCC p.44, para 44) “44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically, result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show ‘prejudice’. Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.” …9… It is thus clear that failure to supply copy of inquiry report in the present case would not automatically vitiate the order, the delinquent employee will have to show ‘prejudice’ and unless the delinquent employee is able to show that non-supply of inquiry report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be bad. The inquiry was conducted in presence of the petitioner. He has filed detailed replies at different stages of the inquiry including appeal and revision. In these circumstances, it cannot be said that in absence of complete copy of inquiry report any prejudice was caused to petitioner. Thus impugned orders are not bad for want of supply of complete copy of inquiry report to the petitioner. 18. The petitioner has relied Rule 16.38 (1) of Punjab Police Rules as applicable to police in Himachal Pradesh which provides as follows:- “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 the 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 Ist class powers”. The stand of the respondents is that misconduct of the petitioner with Lt. Col (Retired) H.S. Gyani was not when …10… petitioner was on duty and it is nothing to do with his official relations with the victim. It is not the case of the respondents that Lt. Col (Retired) H.S. Gyani approached the petitioner in his official capacity and at that time the petitioner committed misconduct. On the contrary the allegations are that the petitioner was present in civil dress in the Police Assistant Room, Shimla on 21.8.1989 in the night after his duty was over. He kept illegally Lt. Col (Retired) H.S. Gyani in the police custody, abused and gave him beatings by hand and stick, who was brought there by some constables. In these circumstances Rule 16.38 (1) of Punjab Police Rules, as applicable to Police in Himachal Pradesh is not applicable. 19. The petitioner has also alleged bias and malafide against respondent No.2. In the petition he has given reference of past actions taken by respondent No.2 against him. No doubt, petitioner No.2 was Superintendent of Police, District Shimla at the relevant time and petitioner was serving under him. In discharging of his official duties, if respondent No.2 had taken some action against the petitioner in past, it cannot be said that because of that action respondent No.2 was biased against the petitioner. The misconduct of the petitioner has been proved during inquiry on the basis of evidence. In the inquiry report findings have been recorded against the petitioner. The punishment imposed by disciplinary authority has been modified by appellate authority which was confirmed by revisional authority. At this stage the observation of revisional authority is material in the order dated 27.12.1991 wherein it has been observed that the Dy. Inspector General of Police, Southern …11… Range had already taken sympathetic decision on the appeal of the petitioner in which the punishment of dismissal has been reduced to a punishment of 4 years forfeiture of confirmed service, which, though, is less in comparison to his charge but, still revisional authority did not deem proper to interfere in the order passed by Dy. Inspector General of Police, Southern Range while rejecting the revision. 20. The allegations of bias malafides against respondent No.2 are vague which have been denied. In the reply, it has been stated that respondent No.2 was not prejudice against petitioner nor he had any malafide intention against petitioner. The petitioner has failed to point out that petitioner has been punished in view of his past conduct. On the basis of material on record, it cannot be said that it is a case of no evidence. This Court is not sitting in appeal against the impugned order. It cannot be said that the findings of guilt and punishment recorded by authorities below against the petitioner are perverse, nor it can be said that punishment imposed is harsh or excessive keeping in view of proved misconduct of the petitioner. There is no merit in the petition which is accordingly dismissed. September 27, 2010 ( Kuldip Singh ) (sks) Judge.