RSA No. 334 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 334 of 1986 Date of Decision: 21.07.2010 The State of Punjab through the Secretary to the Government Punjab, Home Department, Chandigarh. ... Appellant Versus Sh. Dilbagh Singh, S.I. Police No. 55-J s/o Sh. Kartar Singh r/o village Moahhian, Tehsil and District Hoshiarpur. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Kirat Singh Sidhu, Deputy Advocate General, Punjab, for the appellant – State. Mr. H.S. Gill, Senior Advocate, with Mr. Manuj Nagrath, Advocate, for the respondent. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree dated 14.09.85, rendered by the Court of Additional District Judge, Jalandhar, vide which, it dismissed the appeal, against the judgement and decree dated 31.05.83, rendered by the Court of Sub Judge 1st Class, Jalandhar, decreeing the suit of the plaintiff. 2. The facts, in brief, are that, the plaintiff (now respondent), while posted, as Station House Officer, Police Station Dakha, District Ludhiana, was entrusted with the investigation of case FIR No. 174 RSA No. 334 of 1986 2 dated 23.10.76, under Sections 338 and 307 IPC read with Section 25 of the Arms Act, 1959, against Malkiat Singh etc. In due course, one Baljinder Singh, was arrested, in the aforesaid case, against whom, FIR No. 177 dated 26.10.76, under Sections 332 and 353 IPC was registered. Baljinder Singh, made a complaint, against the plaintiff, alleging therein, that he was given beatings, and, a false case, under Section 332 IPC, was registered against him. Thereafter, a departmental enquiry, was initiated against the plaintiff, by Niranjan Singh, Deputy Superintendent of Police. On the basis of the enquiry report, the order impugned, forfeiting one year approved service of the plaintiff with permanent effect, was passed by the Senior Superintendent of Police. It was stated that the order impugned was illegal, null and void, as the sanction for initiating departmental proceedings, was accorded, in contravention of Rules 16.38(1) and 16.38(2) of the Punjab Police Rules. It was further stated that, the punishing authority, did not apply its mind to the facts of the case. The defendant, was many a time asked, to treat the order impugned, as illegal, null and void, but, to no avail. Ultimately, a suit for declaration and recovery of arrears of pay was filed. 3. The defendant, put in appearance, and filed written statement, wherein, it took up various objections, and contested the suit. It was pleaded that the Civil Courts, at Jalandhar, had no territorial jurisdiction, to entertain and try the suit. It was further pleaded that no cause of action, accrued to the plaintiff, to file the suit. It was stated RSA No. 334 of 1986 3 that the departmental enquiry, was conducted, in accordance with the rules. It was further stated that the provisions of Rules 16.38(1) and 16.38(2) of the Punjab Police Rules, were not contravened. It was further stated that, at the time of passing the order impugned, the punishing authority, applied its mind to the facts and circumstances of the case. It was further stated that the order impugned, was, thus, not illegal. It was further stated that the matter, in dispute, was not justiciable. It was further stated that the notice, served under Section 80 CPC, was illegal and invalid. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues, were struck:- (i) Whether the impugned order dated 13.07.79 is illegal, void, unlawful, null etc. as and for reasons alleged in the plaint? OPP (ii) Whether the matter, in dispute, is not justiciable? OPD (iii) Whether the notice served under Section 80 CPC is illegal and invalid? OPD (iv) Whether the Courts at Jalandhar do not have territorial jurisdiction to hear this case? OPD (v) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiff. RSA No. 334 of 1986 4 6. Feeling aggrieved, an appeal, was preferred by the defendant (now appellant), which was dismissed, by the Court of Additional District Judge, Jalandhar, vide judgement and decree dated 14.09.85. 7. Feeling dissatisfied, the instant Regular Second Appeal, was filed by the appellant. 8. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 9. The following substantial question of law arises, in this appeal, for the determination of this Court:- Whether the Courts below, on complete misreading and misappreciation of evidence, and, law on the point, recorded perverse findings, that the order dated 17.03.77, according sanction, for holding departmental enquiry, against the respondent, was non-speaking? 10. The Counsel for the appellant, submitted that, the Courts below, recorded perverse findings, on misreading and misappreciation of evidence, that the order dated 17.03.77, passed by the District Magistrate, according sanction for holding departmental enquiry, against the plaintiff/respondent, was non-speaking and, as such, illegal. It was further stated that, the Courts below, were also wrong, in holding that, due to this reason, the impugned order imposing penalty upon the plaintiff, was illegal and void. He further submitted that the findings of the Courts below, being perverse, are liable to be set aside. RSA No. 334 of 1986 5 11. On the other hand, the Counsel for the respondent, submitted that, the Courts below, on correct reading and due scrutiny of the evidence, were right, in coming to the conclusion, that the order dated 17.03.77, passed by the District Magistrate, according sanction for holding departmental enquiry, besides being, in the printed proforma, in which, the blank columns, were filled, in hand, was also bereft of reasons, and, as such, non-speaking. He further submitted that, Rule 16.38(2) of the Punjab Police Rules, is mandatory, and, the District Magistrate, was required, to record reasons, in the order dated 17.03.77, according permission for holding departmental enquiry, against the appellant. He further submitted that the Courts below, were, thus, right in setting aside the order, vide which, the penalty, was imposed upon the plaintiff/respondent. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal, is liable to be dismissed, for the reasons to be recorded, hereinafter. The enquiry file is D1, which formed part of the record. The perusal of the record shows, that there was a complaint, against the plaintiff, by one Baljinder Singh, alleging therein, that he had given beatings, to him, and registered a false case, under Sections 332, 353, 323, 212 and 186 IPC, against him (Baljinder Singh). The order dated 17.03.77, granting sanction to hold departmental enquiry was passed by the District Magistrate. Chargesheet, was served upon the plaintiff/respondent, and, after holding departmental enquiry, RSA No. 334 of 1986 6 penalty was imposed upon him. The question arises, as to whether, the provisions of Rule 16.38(2) of the Punjab Police Rules, were followed, in letter and spirit, or not. Rule 16.38(2) of the Punjab Police Rules, provides that, when the investigation, under Rule 16.38(1) of the Punjab Police Rules, establishes a prima-facie case, indicating the commission of a criminal offence, by a Police Officer, a judicial prosecution, shall normally follow. Rule 16.38 (2) of the Punjab Police Rules, further provides, that the matter, shall be disposed of departmentally, only if the District Magistrate, so orders for reasons to be recorded. Rule 16.38(2) of the Punjab Police Rules, is, thus, not an ideal formality, but, embodies in it, that reasons, must be recorded before according permission for holding departmental enquiry. It means that, the District Magistrate, was required, to apply his mind, to the facts and circumstances of the case, as also the record, produced before him, that process of judicial prosecution, should be dispensed with, and departmental enquiry, should be conducted. The perusal of the order dated 17.03.77, clearly goes, to show, that it is in the printed proforma. Some blank columns, were left therein. Those columns, were filled up, in hand. It is evident, from the said order, that a letter No. 10305 dated 15.03.77, was received, from the Senior Superintendent of Police, Ludhiana, that Bakshi Ram, Assistant Superintendent of Police, Ludhiana, conducted the preliminary enquiry, as a result whereof, the allegations, against the plaintiff, were prima-facie established. There is nothing, in this order, that the enquiry report, which was submitted by RSA No. 334 of 1986 7 Bakshi Ram, Assistant Superintendent of Police, and, the statements of the witnesses, which were recorded, by him, during the course of preliminary enquiry, were perused by the District Magistrate, before according sanction. The District Magistrate, merely, on the basis of the letter of the Senior Superintendent of Police, Ludhiana, referred to above, accorded sanction. Had the record been produced, before the District Magistrate, the mention thereof, would have certainly been made, in this order. Since the order, is conspicuously silent, with regard to the production of record of preliminary enquiry, conducted by Bakshi Ram, Assistant Superintendent of Police, and, the statements of the witnesses, recorded by him, during that preliminary enquiry, before the District Magistrate, it means that, he did not take the same into consideration, before passing the order dated 17.03.77. The reasons, recorded by the District Magistrate, Ludhiana, in the order D1, were to the effect, that he was in agreement with the Enquiry Officer, and, had arrived at a conclusion, that it was necessary, to hold departmental proceedings, against Dilbagh Singh, because, in the Courts, witnesses, did not stand, against the Police officials, and, thus, judicial proceedings, were not necessary. In the printed proforma, only the name of the plaintiff/respondent, was typed, and the rest of the phraseology, in Punjabi, was cyclostyled. The reasons, recorded by the District Magistrate, Ludhiana, in the order, that the witnesses, may not stand, against the Police official, in the Court, and, as such, the judicial prosecution, was not ordered, also does not appeal to mind. There was, RSA No. 334 of 1986 8 therefore, no ground, to dispense with the normal process of the judicial prosecution. The order dated 17.03.77, passed, under Rule 16.38(2) of the Punjab Police Rules, being bereft of reasons, is non- speaking, and, was rightly held to be illegal by the Courts below. In Nand Nandan Sarup Vs. The District Magistrate, Patiala and others,1966, PLR, 747, and, Delhi Administration Vs. Chanan Singh (1969, SLR, 217 (S.C.), a case decided by a three Judge Bench of the Supreme Court, the principle of law, laid down, was to the effect, that failure, to record reasons for proceeding departmentally, instead of judicial prosecution, renders the order illegal. The Courts below, were, thus, right in holding, that the order dated 17.03.77, granting permission by the District Magistrate, Ludhiana, for holding departmental enquiry, was without application of mind, and bereft of reasons. The Courts below, were also right, in holding, that the order dated 17.03.77, being non-speaking was illegal. The Courts below, recorded correct findings, that the impugned order imposing penalty, on account of the aforesaid reason, was also illegal. The Courts below, were, thus, right in setting aside the order, imposing penalty upon the plaintiff/respondent. The findings, recorded by the Courts below, in this regard, are neither perverse nor illegal and do not warrant any interference. 13. The substantial question of law, depicted above, is answered, against the appellant. 14. For the reasons recorded above, the instant Regular Second RSA No. 334 of 1986 9 Appeal, being devoid of merit, must fail, and the same, is dismissed with costs. 21.07.2010 (SHAM SUNDER) Amodh JUDGE