Dharam Pal vs State of Haryana and Others

Ranjit Singh, J.—The Petitioner, a Police Officer, stands dismissed from service for getting a statement of prosecutrix recorded in a Court

u/s 164 Code of Criminal Procedure One may wonder what offence he has committed to face dismissal and lose over 37 years of service. If there

could be an answer to this, then it is available in the form of allegation that the Petitioner got the statement recorded without taking permission of his

senior. The Petitioner was the Investigating Officer in the case. Was he to take permission for this ? Dismissal from service is his fate. He has, thus,

challenged his fate-the punishment of dismissal. Even providence does not seem to be in his favour. The Petitioner is detected to be suffering from

cancer. When the adversities come, these come in plenty. That seems to be so for the Petitioner. He is before the Court seeking priority hearing of

his writ petition, which was admitted on 20th January, 2009, to be heard within one year.

Person suffering from such deadly disease should not suffer delay in decision of his fate. Writ would deserve priority hearing and so is taken up

for hearing straightway.

The trouble for the Petitioner started when FIR No. 42 was lodged by one Smt. Chameli Devi on 14th April, 2006, alleging offence under

Sections 376/506/34 IPC at Police Station Siwani, District Bhiwani. The Petitioner was entrusted with investigation of this FIR. The investigations

were to be verified by D.S.P. Ram Kumar. He (D.S.P. Ram Kumar) came to opine that the allegations made in the FIR were false. Accordingly,

the cancellation report dated 16th May, 2006 was prepared for presenting it to the court. Smt. Chameli Devi appeared before the officials with

villagers and objected to the proposal to file cancellation report. This led to re-investigation of the case. The Petitioner was again entrusted with this

reinvestigation.

The trouble for the Petitioner would start now. It is alleged that Petitioner knew the case to be a false but still, got statement of the complainant

recorded u/s 164 Code of Criminal Procedure before JMIC, Siwani without informing the senior officers. This was enough for the seniors to

suspend the Petitioner, on 11th June, 2007. It is not clear if gravamen of the allegation is for recording statement or for doing so without

permission. Charge-sheet dated 24th August, 2007 was prepared against the Petitioner and served on him. He is accused of fabricating false

evidence by getting the statement of the prosecutrix recorded in the Court. One would wonder how this allegation would stand against him.

D.S.P. Dadri was detailed to conduct the enquiry for the allegations made in the charge-sheet (Annexure P-2). The Petitioner filed a reply and

thereafter matter was enquired into. Guilty was the verdict returned by the Enquiry Officer. What else it could have been once he was charge

sheeted by the Superintendent of Police of the District. The matter is then placed before the Superintendent of Police, who records that he has

carefully examined the case and is of the view that Petitioner has exhibited gravest act of misconduct. He has further recorded that such like misuse

of official status should be dealt with heavy hand to check the menace of misuse. Thereafter, he has proceeded to record that no punishment other

than dismissal would meet the ends of justice. The dismissal is thus the punishment imposed on him.

Such a strong reaction from generally known insenstive Police would sound a bit out of place. A little peep into the background of course would

disclose the reasons for this wrath. The reply filed by State to the petition would give an indication in this regard. Ex. Member Parliament stationed

at Delhi had made a complaint to Director General of Police, alleging false implication of the persons in this FIR at the instance of D.S.P. Deepak

Saharan and his brother Chander Parkash. This led to an enquiry and finally an action against the Petitioner. It is not clear if any action is taken

against D.S.P. Deepak Saharan or his brother, who were stated to be instrumental in lodging of complaint. This background is enough for the

Superintendent of Police to ignore fairness in exercise of his power. To him, this would look to be a gravest misconduct. He would not notice the

defence of the peitioner that he had been posted out of the place after the statement of the prosecutrix was recorded. He would also not consider

that the Petitioner was detailed to go to the court by the S.H.O. and identify the lady for recording her statement. Superintendent of Police would

conveniently ignore that Non-bailable Warrants for the accused was obtained by some other officer and it led to arrest of the accused named in the

FIR. He would also not consider that prosecutrix was not examined at the enquiry.

The Petitioner was entrusted with investigation. D.S.P. was the Supervisory Officer of the investigation. On representation of the complainant

and the villagers, the reinvestigation was done which was again entrusted to the Petitioner. The Petitioner apparently was doing his duty as

Investigation Officer. Even S.H.O. was to supervise the investigation. Subsequent action was taken by some other officer by obtaining Non

Bailable Warrants from the Court. If the case was false and cancellation report was prepared then why this action to get Non Bailable Warrant

and follow up was taken by other officer including S.H.O. ? What misconduct would be on the part of Investigating Officer-Police Officer, if he

takes the prosecutrix to the Court to make a statement ? No answer would be forthcoming to these posers. These did not invite any attention of

the Superintendent of Police. This appears to have become misconduct, when Ex. Member of Parliament intervened. Where was the need to

inform superiors ? Why others did not do so ? Even the State counsel could not draw my attention to any provision which would required the

Investigating Officer to take such permission from his superior for getting the statement of a prosecutrix recorded before the Court u/s 164 Code

of Criminal Procedure The stand of the Petitioner is that he was sent only to identify the lady, which would indicate that the Petitioner was not the

one who was instrumental in recording the statement. Such questions are begging for answers.

The case may be seen from another angle. It is alleged that the Petitioner knew this case to be false but still got the statement recorded. It has

not yet been established that case is false. The cancellation report though filed but is yet to be accepted by the Court. The complainant has

appeared before the Court and has filed protest petition against the cancellation report. Case is fixed for recording preliminary evidence as per the

orders placed before me during the course of hearing of the case. How the allegations made against the Petitioner would, thus, stand. This has

completely escaped notice of the Superintendent of Police concerned who has passed the order. He has also failed to appreciate that responsibility

of making false allegations would be of Chameli Devi, who is the complainant in this case. What misconduct was committed by the Petitioner in just

going and identifying the prosecutrix, who made the statement, which is recroded u/s 164 Code of Criminal Procedure really cannot be

appreciated. To my mind, the Petitioner has been charged with something which really may not be a misconduct. Strangely, the Petitioner has been

dismissed from service for this.

The punishment, to say the least, appears highly disproportionate to the gravity of misconduct charged, if it may be called a misconduct, which,

according to the Superintendent of Police has lowered the image of police department. The Superintendent of Police has viewed that Petitioner is

required to be dealt with heavy hand to check and eliminate the menace of misuse of official status. What official status the Petitioner has misused is

not specified.

The punishing authoriy (Superintendent of Police) has viewed that there is no other punishment than the dismissal, which would meet the ends

of justice.

The question of the choice and quantum of punishment would be within the jurisdiction and decision of the punishing authority. The punishment

should not be unduly harsh and vindictive. It should also not be disproportionate to the gravity of misconduct as to shock the conscience. If the

punishment awarded is such which is an outrageous defiance of logic, then it would not be immune from correction as a part of judicial review.

Judical review is not generally directed against the decision, but against the decision making process. Irrationally and perversity are recognised

grounds of judicial review. In this regard, reference may be made to the observations of Lord Deplock in Council of Civil Service Union v.

Minister of Civil Service 1984 (3) WLR 1174 (HL) which are as under:

?Judicial Review has I think, developed to a stage today when without reiterating any analysis of the steps by which the development has come

about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The

first ground I would call ''illegality'', the second ''irrationality'' and the third ''procedural impropriety''. That is not to say that further development on

a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of

''proportionality'' which is recognised in the administrative law of several of our fellow members of the European Economic Community?.

This was referred to with approval by Hon''ble Supreme Court in Ranjit Thakur Vs. Union of India (UOI) and Others, . In Bhagat Ram Vs.

State of Himachal Pradesh and Others, . the Hon''ble Supreme Court held as under:

It is equally true that penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity

or the misconduct would be violative of Article 14 of the Constitutuion of India.

It would need to be emphasised here that all powers have legal limits.

Even if the Petitioner had got the statement of the prosecutrix recorded in the court without the concurrence of the senior officers, the same

was open to be corrected, rather than acting against him in this harsh manner. The punishment of dismissal would sound rather harsh and

disproportion even to the nature and gravity of the misconduct alleged. The impunged order would also show that the punishing authority did not

consider the long service of 37 years rendered by the Petitioner, while passing the order of dismissal. It was incumbent upon the disciplinary

authority to take this into consideration in terms of Rule 16.2 of the Punjab Police Rules. This rule provides that dismissal shall be awarded only for

gravest act of misconduct and in making such award, regard shall be had to the length of service of the offender and his claim for pension. The

misconduct alleged against the Petitioner is not mentioned as gravest act of misconduct in the list of misconducts referred in the rule. There is no

consideration given to the length of service of the Petitioner, which is also to be seen while awarding dismissal. In this regard, I can seek support

from Dhan Singh v. State of Haryana and Ors. 2009 (2) SLR 40, where the order of dismissal was said to be bad on this ground where it is made

without taking into consideration the fact of long service rendered by the individual while imposing the punishment of dismissal.

The cancellation report, which was filed subsequently, is yet to be accepted. The cancellation report is being contested vigorously by the

complainant. Least what was expected from the punishing authority was to wait for the outcome of the cancellation report before taking action

against the Petitioner. One would have to visualise the fate of the order against the Petitioner if the court ultimately declines to accept this

cancellation report pending adjudication. Would then the punishing authority be in any position to justify the order of dismissal ? The punishing

authority has totally ignored 37 years of service rendered by the Petitioner, which was required to be kept in view statutorily. It appears that

punishing authority has ignored all valid considerations and the law while imposing this highly disproportionate punishment to the Petitioner. Even if

there was some misconduct, which though is not made out from the record, the punishment as awarded is certainly one which will shock one''s

conscience and would in itself amount to a bias. This appears to be the outcome of the interjection by Ex. Member of Parliament. The punishment

would sound irrational and even perverse. This will be more so when seen in the background of the provisions of Rule 16.2 of the Rules. In the

facts and the background as noticed, the order of punishment of dismissal from service against the Petitioner is vitiated.

The conclusion may pose another question as to whether further action to impose any fair punishment is called for in this case or not. That

course if left open, may lead to another unfair consequences. Misconduct alleged is not fully made out. No action appears to have been taken

against others, who continued to pursue the case and took no action to take corrective measures. Cancellation report is yet to be accepted. There

is no loss to the State and charge, if any, appears trivial infirmity in performance of duties. The Petitioner, in the meantime, is found to be suffering

from cancer. All these factors show that it would not be fair to put the Petitioner to hazard of fresh enquiry or any fresh punishment.

The writ petition is allowed. The order of dismissal passed against the Petitioner is quashed. Direction is hereby issued to reinstate the

Petitioner into the service forthwith. The present D.G.P. may look into the case if all this action was taken to favour some privileged persons, who

were accused of having committed serious offences, like rape but are being let off.