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Judgment
Ajay Mohan Goel, Judge (Oral)
By way of this petition, the petitioner has inter alia prayed for the following reliefs:-
“(i)That the impugned order dated 01.02.2025 contained in Annexure P-14 duly passed by the respondent No. 3-DIG (CR) Mandi to the extent of holding fresh de-novo enquiry and conclude it within 06 months after complying with the provisions of Rule 16.38 of the PPR as applicable to the State of HP, order dated 01.03.2025 (Annexure P-15) to the extent of treating the period from the date of dismissal i.e. 22.12.2023 to date of re-joining of the petitioner as deemed suspension, order dated 03.03.2025 (Annexure P-16) placing the petitioner under suspension w.e.f. 01.03.2025 and further order dated 17.03.2025 (Annexure P-17) passed by the respondent No. 4 directing the petitioner to join de-novo inquiry afresh may kindly be quashed and set-aside with all consequential service benefits including seniority, continuity in service & promotion to the post of HHC, being arbitrary, illegal, hypothetical, non-est, constitutionally void and against the principles of natural justice and judgments of various Hon'ble Courts/ Hon'ble Supreme Court of India, as referred to in para 27 of the present writ petition, by issuing writ of Certiorari;
(ii)That a writ in the nature of mandamus may kindly be issued, directing the respondents to grant study leave in favour of the petitioner as and when he applies for the same, because the petitioner fulfills all the eligibility criteria as provided under the rules, as the petitioner has already got his admission in Law Course at Career Point University, Hamirpur (H.P.) on 27th day of January, 2024;
(iii)That a writ in the nature of mandamus may kindly be issued, directing the respondents to release all due and admissible financial benefits to the petitioner alongwith interest @ 9% per annum by treating him as on duty from 22.12.2023 to 28.02.2025;
(iv)To grant to the petitioner such other consequential reliefs, which the Hon'ble Court may deem fit, just and proper in facts and circumstances of the matter;.”
The controversy involved in this petition is in a narrow compass. Facts necessary for the adjudication of this petition are that while posted as a Traffic Clerk in the office of Superintendent of Police, Bilaspur, a complaint was filed against the petitioner by Sub Inspector Kuldeep Singh, In-Charge, Traffic Police, S.P. Office, Bilaspur, at Police Station Sadar, Bilaspur to the effect that the petitioner had challened one vehicle bearing Registration No. PB-34-B 5818 on 03.05.2023, under Sections 207, 192 and 185 of the Motor Vehicles Act and had scanned copy of the driving licence of the driver of the vehicle which he had taken in his possession. As offence under Section 185 of the Motor Vehicles Act was not compoundable by the Police, the challan was forwarded to Chief Judicial Magistrate, Bilaspur, for further action. On 09.05.2023, HC Rajinder Kumar intimated Incharge Traffic SI Kuldeep Singh that after checking the history of said traffic challan on e-challan application, it was observed that Rs. 3500/- was being displayed as compounding amount against the same. Certain doubts were created regarding the misappropriation of money/editing in the said challan in the mind of HC Rajinder Kumar, therefore, he again checked the status of challan on e-challan application and found that the challan stood compounded by the Chief Judicial Magistrate, Bilaspur, vide receipt No. 01150611, dated 09.05.2023, for an amount of Rs.5,000/- and Rs.0 was reflected for Section 185 of the Motor Vehicle Act, whereas Section 181 of the Motor Vehicle Act was not inserted by the challaning officer while conducting the challan.
The matter was inquired by SI Kuldeep Singh from the owner of the vehicle Gursevak Singh. Gursevak Singh informed that on 08.05.2023, he visited the Traffic Branch of Superintendent of Police, Bilaspur, alongwith his Counsel. Therein, the petitioner was present and he paid fine of Rs.20,000/- as compounding fee through his Counsel as compounding fee in the name of Sushil Kumar. SI Kuldeep Singh, took possession of said receipt from Gursevak Singh on Whatsapp and perusal thereof demonstrated that challan of the said vehicle was shown to be compounded for Rs.20,000/- on 09.05.2023. The receipt, though looked like an original one, later was found to be typed/handmade and as all this created a doubt, SI Kuldeep Singh submitted a complaint to the higher officer who ordered a preliminary enquiry.
To cut the controversy short, in the preliminary enquiry, it was found that the petitioner had made certain additions/deletion in the challan without the prior approval of the Authority and an amount of Rs.20,000/- stood received by him as compounding fee from Gursevak Singh in his personal account which was not deposited with the Government.
On the basis of this preliminary report, an FIR was lodged against the petitioner under Sections 420, 468 and 471 of the Indian Penal Code at Police Station, Sadar, Bilaspur. A departmental enquiry was also initiated against the petitioner on the basis of said FIR and an Enquiry Officer was appointed. After the completion of the enquiry, on the basis of the enquiry report, the Disciplinary Authority/ Superintendent of Police, Bilaspur, vide order dated 22.02.2023 (Annexure P-6), ordered the dismissal of the petitioner, in exercise of powers conferred under Rule 16.2 (1) of the Punjab Police Rules, 1934 and Section 88(1) of the Himachal Pradesh Police Act, 2007.
Feeling aggrieved, the petitioner preferred an appeal. Though, earlier the appeal filed by the petitioner was dismissed on the ground of delay but in terms of the order passed by this Court in CWP No.6365 of 2024, titled Constable Sushil Kumar vs. State of H.P. and others, decided on 10.07.2024, a fresh order was passed by the Appellate Authority and in terms of this order Annexure P-14, dated 01.02.2025, the appellate authority while setting aside the enquiry report as well as the order passed by the Disciplinary Authority has ordered a de novo enquiry to be held in terms of Rule 16.38 of the Punjab Police Rules as applicable to the State of HP after holding that the enquiry earlier initiated, was not initiated as per law.
Feeling aggrieved, the petitioner has approached this Court, praying for the reliefs already enumerated herein above.
Learned Counsel for the petitioner argued that the impugned order in terms whereof, de novo enquiry has been ordered by the Appellate Authority is not sustainable in the eyes of law. He argued that in terms of the law settled by Hon’ble Supreme Court of India, there cannot be any de novo enquiry. He submitted that as the Appellate Authority had come to the conclusion that there was flaw in the enquiry earlier conducted, then the option available with the authority was to have set aside the order passed by the Disciplinary Authority and the Appellate Authority should have ordered the holding of the enquiry from the stage, the same was vitiated but the Appellate Authority could not have ordered the holding of a de novo enquiry.
On the other hand, learned Additional Advocate General argued that there is no merit in the contention of learned Counsel for the petitioner. He submitted that it is not as if the Appellate Authority ordered a de novo enquiry in proceedings which were initiated under the CCS(CCA) Rules. Learned Additional Advocate General submitted that in the present case as the disciplinary action was initiated against the petitioner on account of an act of his which was the result of abuse of his official position, that being the case, the Disciplinary Authority concerned could not have had ordered enquiry directly as was done in the present case. Learned Additional Advocate General submitted that in terms of the provisions of the Rule 16.38 of the Punjab Police Rules as are applicable to the State of Himachal Pradesh, the Superintendent of Police was to provide the information to the District Magistrate, indicating the commission of offence by the police officer in connection with his official relation with the public and it was for the District Magistrate to decide whether the investigation of the complaint was to be conducted by a police officer or by a selected Executive Magistrate. Learned Additional Advocate General submitted that as this was not done by the Superintendent of Police, who directly ordered the enquiry, in violation of Rule 16.38 (supra), learned Appellate Authority correctly set aside the enquiry and the order passed by the Disciplinary Authority and ordered a de novo enquiry under Rule 16.38 of the Punjab Police Rules. Accordingly, he submitted that as there is no merit in the petition, the same be dismissed.
I have heard learned Counsel for the parties and have also carefully gone through the pleadings as well as documents appended with the petition and the relevant provisions of the Punjab Police Rules.
For the purpose of clarification, this Court reiterates that the facts as have been mentioned hereinabove have been culled both from the petition as well as from the reply filed by the respondent-Department.
In the present case, the moot issue is as to whether the de novo enquiry that has been ordered by the Disciplinary Authority is sustainable in the eyes of law or not?
In the present case, the Departmental proceedings against the petitioner have been initiated under the provisions of Chapter 16 of the Punjab Police Rules, 1934, as are applicable to the State of Himachal Pradesh. Rule 16.38 of the same deals with criminal offences by the police officers and strictures by Courts-Procedure regarding. Sub-rule (1) of said Rule provides that 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. In the present case, it is not in dispute that the disciplinary proceedings were initiated against the petitioner on the basis of a complaint received by the Superintendent of Police, which indicated the commission of a criminal offence by the petitioner in connection with his official relations with the public. The allegation against the petitioner was with regard to interpolation of the challan, reference whereof has already been in the above part of the judgment and siphoning of the amount in his own account from the owner of the vehicle. That being so, the Superintendent of Police in terms of Rule 16.38 (1), was bound to have provided said information to the District Magistrate and thereafter, it was for the District Magistrate to have had decided whether the investigation of the complaint was to be conducted from a police officer or from a selected Executive Magistrate. However, after the complaint was received by the Superintendent of Police, rather than following this procedure, he himself initiated the process of holding the enquiry, which has been set at naught by the Appellate Authority. Now, a perusal of the order passed by the Appellate Authority demonstrates that the Appellate Authority referred to Rule 16.38 (supra) and held that as in the present case, the procedure prescribed therein was not followed, whole of the enquiry was being vitiated. This Court concurs with the findings which have been returned by the learned Appellate Authority. In fact, to be more elaborative, this Court is reproducing the findings and reasoning given in the order under challenge by the Appellate Authority, which read as under:-
“B. Findings and reasons thereon.
1.It is not in dispute that upon the request of the appellant and purely on humanitarian grounds, an opportunity was given to him to join the inquiry and present his case afresh by cross examining the witnesses and leading defence in support of his case. The Honorable High Court had asked to decide the case on merit, but in the absence of the appellant's version of the misconduct the evidence on record is the same as that in the previous enquiry which held him guilty and eventually led to his dismissal.
2.Purpose of giving the opportunity to join the inquiry was to ensure that the applicant must not be condemned unheard but he must be given an opportunity to prove his innocence, if any. However, despite the opportunity, the appellant has not joined the fresh inquiry ordered by SP Bilaspur but has come to this office requesting that the case be decided on merits.
3.Before proceeding to decide the appeal it is worth noting that there is no fresh evidence or any new fact that has emerged, as the appellant is unwilling to join the inquiry despite having given an opportunity to do so upon his request at the time of personal hearing and on humanitarian grounds to give any statement either in chief in defense. The criminal trial has overwhelmed the appellant so much that he is trying to seek complete relief from the ?departmental proceedings and has time and again requested to set aside the order of dismissal and then start a denovo. His fear of not giving any statement in the enquiry and not even to this office has no foundation at all, as criminal trial and departmental proceeding rely on different quality of evidence, beyond reasonable doubt and preponderance of probability respectively. Still however, this office shall be failing in its duty if appeal is not examined on merits and so, the same is decided on the following grounds.
4.At the very outset, it is writ large on record that there has been violation of Rule 16.38 of PPR while conducting the inquiry in as much as the perusal of order initiating inquiry dated 05.06.2023 passed by SP Bilaspur does not show that the same was issued in accordance with the permission of DM Bilaspur as mentioned in the rule ibid. The rule is reproduced as follows:-
16.38. Criminal offences by police officers and strictures by Courts -Procedure regarding-
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]1
(2)When investigation of such a complaint establishes a prima facie case, a judicial prosecution shall normally follow; the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded. When it is decided to proceed departmentally the procedure prescribed in rule 16.24 shall be followed. An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed.
(3)Ordinarily a Magistrate before whom a complaint against a police officer is laid proceeds at once to judicial enquiry. He is. however, required to report details of the case to the District Magistrate, who will forward a copy of this report to the Superintendent of Police. The District Magistrate himself will similarly send a report to the Superintendent of Police in cases of which he himself takes cognizance.
(4)The Local Government has prescribed the following supplementary procedure to be adopted in the case of complaints against police officers in those districts where abuses of the law with the object of victimising such officers or hampering investigation is rife. The District Magistrate will order that all petitions against police officers shall be presented to him personally. If he considers that these petitions are of a frivolous or factious nature, it is within his discretion to take no action on them. When he considers an enquiry to be necessary he will use his discretion whether to send the papers to the Superintendent of Police or to a Magistrate for judicial enquiry. In the case of formal criminal complaints, the District Magistrate will arrange for all cases to be transferred from other courts to his own.
(5)Orders have been issued by the Hon'ble Judges of the High Court making it obligatory on all civil and criminal courts, whenever they make strictures on the personal character or professional conduct of a police officer, to send a copy of the judgment to the executive authorities. In the case of the High Court itself the copies will be forwarded to the Local Government. In the case of all other courts (including Courts of Sessions), the copies will be sent by the Judges and Magistrates concerned to the District Magistrate.
6)In cases in which strictures are passed on the conduct of the police by a Sessions Court or by a Magistrate's Court and no specific recommendation is made by the Court making such strictures that an enquiry should be made, the District Magistrate will decide whether an investigation into the matter is necessary, and if so, whether it shall be conducted by a police officer or by a selected 1 [Executive Magistrate). If he decides that an investigation shall be made, the procedure subsequent to such investigation shall be that laid down in sub-rule (2) above. In cases in which the court passing strictures on the conduct of the police suggests that an enquiry should be made, the District Magistrate will comply with such request in accordance with the procedure prescribed in paragraphs (1) and (2) above. When strictures on the conduct of the police are made by the High Court and communicated to the Local Government direct in accordance with paragraph (5) above, the instructions of Government as to the action to be taken by the local authorities will be communicated to them through the ordinary channels. In cases in which the High Court suggests that an enquiry should be made the Local Government will give orders accordingly.
(7)Rules 24.14 and 24.15 provide for reports of all serious charges against the police being communicated to the Local Government by a special report. In cases where such serious charges arise from strictures passed by criminal courts, the Superintendent of Police and the District Magistrate should communicate, either in the report itself or in a covering letter, the procedure which they propose to adopt and any information or notes in connection with the case which they consider should be brought to the notice of Government. Rule 24.15 provides the opportunity for Deputy Inspectors-General and Commissioners similarly to communicate their comments to the local Government.
5.From the perusal of above rule 16.38 (2) it is abundantly clear that when information of commission of offence by police officer in his relations to public is received, the SP shall give the same to the District Magistrate who shall decide if the matter is to be proceeded departmentally. In the present case, no such procedure has been followed and so, there is complete violation of the mandatory provision of rule 16.38, in absence whereof the whole inquiry has been vitiated.
6.Even otherwise, important facts have not been inquired into nor relevant witnesses examined to prove the charges in the summary of allegations served upon the appellant. Firstly, that he edited/ modified the challan of vehicle no PB34-B 5818 without the permission of the SP Bilaspur. Various official witnesses were examined to prove these facts. The perusal of record however shows that there are no clear orders from the office of the SP as to which police personnel in particular would use the given ID for traffic challan and that the ID was not used by others in the traffic desk cannot be ruled out unless there is specific evidence to that effect, Orders attached with the inquiry report show that apart from Appellant posted as traffic clerk, there were 02 other police officials posted as Assistant Traffic Clerk. Even though it has been concluded that editing/modifications in the challan have been done by the appellant as he was posted as traffic clerk, there is no document to show that the ID of SP was given to Ct Sushil Kumar only and no other person could have used it which is essential to fully prove the charges against him. Being so, it is not proved conclusively that the ID was used by Ct. Sushil Kumar and none else. Secondly, that on 08.05.23, he (Ex Ct. Sushil Kumar) accepted a sum of Rs 20,000/from Mr Rajnish Sharma, Advocate of Mr. Gursevak Singh, owner of vehicle No. PB34-B 5818 for compounding the challan and online uploaded it on 09.05.23 for Rs 5000 with modification and further did not deposit the amount in the government account and that by doing so, he misused his official position.
Evidence of Gursevak Singh, owner of vehicle no. PB34-B 5818 and his counsel were must for proving this fact of transfer of amount of Rs 20, 000 into the account of appellant; however, no such witness has been examined before concluding the appellant guilty of the charge. Their examinations were necessary as even otherwise, it is settled that even in ex parte proceedings, it is the duty of the enquiry officer to conclude on the basis of entire evidence. It cannot be decided by presuming anything either in favour or against the charged officer. Being so, acting on the basis of one sided version is not justified.
Thirdly, that Ex. Ct Sushil Kumar compounded offence of drunken driving even though police has no authority to compound it.
In order to prove this fact, oral evidence of official witnesses were relied upon. Statement of HC Rajinder no. 70 does show that SP for Rs 20000 for offence under section 185 My Act, however, there is no conclusive evidence that it was done by the appellant though it is admitted on record by the appellant in his appeal that he had received an amount of Rs 20,000/-from Sh Rajnish Sharma, Advocate of the vehicle owner Gursevak and had repaid him vide cheque for an amount of Rs 21,500/-only but non examination of those persons as witnesses does not substantiate the charge against the appellant.
7.For the reasons stated above, the enquiry against the appellant cannot be said to be done in compliance with law and procedure and so, the order of dismissal passed on the basis of such enquiry report is not sustainable.
In view of the reasons mentioned above, the appeal filed by the Appellant Ex. Ct Sushil Kumar no 389 succeeds and is accordingly allowed. The order of dismissal passed by SP Bilaspur is set aside and appellant is directed to be reinstated. It is further directed that SP Bilaspur to conduct fresh de-novo inquiry and conclude it within 06 months after complying with the provisions of Rule 16.38 of the PPR as applicable to the State of HP. In view of decision on appeal, all pending applications are also disposed off being in-fructuous.
Let the copy of this order be communicated to SP Bilaspur, as also the applicant.”
During the course of hearing of this petition, it could not be demonstrated that these findings returned by the Appellate Authority were perverse or not borne out from the record of the case. That being the case, as apparently and prima facie, there was a violation of Rule 16.38 (supra) in the case as Superintendent of Police concerned could not have had independently ordered an enquiry, the enquiry was rightly set aside by the Appellate Authority alongwith order passed by the Disciplinary Authority. In these circumstances, as the enquiry was set aside on a technical ground, i.e. the non-adherence to the provisions of Rule 16.38 of the Punjab Police Rules, the only option available with the Appellate Authority was to order a de novo enquiry which has been rightly ordered. Though this Court is not oblivious to the effect that Hon’ble Supreme Court in K.R. Deb vs. The Collector of Central Excise, Shillong, 1971 (2) SCC 102, has been pleased to hold that a de novo enquiry cannot be ordered by the Disciplinary Authority but said judgment has been delivered by the Hon’ble Supreme Court of India by interpreting the provisions of Rules 14 and 15 of the CCS and CCA Rules and not in the light of the rule position, as is contained in Rule 16.38 of the Punjab Police Rules. Therefore, this Court does not concurs with the contention of learned Counsel for the petitioner that the Appellate Authority could not have had ordered the holding of a de novo enquiry. It is again reiterated that in the facts of this case, the only option available with the appellate Authority was to order holding of a de novo enquiry by following the procedure prescribed under Rule 16.38 of the Punjab Police Rules, as is applicable to the State of Himachal Pradesh and as the Appellate Authority has done exactly the same there is no occasion for the Court to interfere with the order passed by the Appellate Authority.
Accordingly, in the light of above discussion, as this Court does not find any merit in the present petition, the same is dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly.