Vijay Pal vs State of Haryana

Rajiv Narain Raina, J.—Four former policemen have approached this Court in a joint petition seeking directions to quash their orders of dismissal from service and the antecedent inquiries, show cause notices, appeals etc. and to reinstate them to service with all consequential benefits. Petitioners No.1 to 3 have been dismissed vide order dated March 05, 2013 passed by Superintendent of Police, Hisar while the petitioner No.4 on September 11, 2013 by Superintendent of Police, Sirsa.

The Genesis of the lis

FIR No.261 dated March 11, 2010 was got registered by one Rajat Aggarwal at Police Station City Panipat against 7 unknown and unnamed persons alleging dacoity of Rs. 6 lacs from his shop. On the basis of suspicion and without being identified by any witness the petitioners say that they were arrested by the Police on March 15, 2010 alleging involvement in the FIR. They remained under custody for 18 months from March 2010 to September 2011. Arrests led to suspension from service vide order dated March 16, 2010 passed by the Superintendent of Police, Hisar being their disciplinary authority. Vide orders dated March 17, 2010 and April 15, 2010 a joint departmental enquiry was ordered to be conducted against the petitioners. The petitioners were tried departmentally and at the same time put under criminal trial with other co-accused persons. The trial ended in an acquittal vide judgment and order dated November 06, 2012. The trial Court held that the prosecution had miserably failed to prove the identity and guilt of the accused and found on evidence that the prosecution failed to link the accused persons with the alleged commission of the offence of dacoity. The petitioners were acquitted from all the charges framed against them i.e. under Sections 395, 397, 398 & 120-B of the IPC read with Section 27 of the Arms Act.

Neither did the complainant Rajat Aggarwal appearing as PW-3 nor any of the alleged eye-witnesses PW-4, Narender Goel and PW-8 Raja Gupta and PW-9 Rajiv Gupta in their statements on oath identified the accused persons in Court as the persons who committed the crime despite opportunity given. On the other hand, they categorically stated that none of the accused persons present in Court were involved in the occurrence of the charged offence. The trial Court observed that the police did not conduct a Test Identification Parade during the investigation and the trial Court thus held that the identification memo Ex.P-C was merely paper-work done by the Investigating Officer.

With the judgment of acquittal in hand, the petitioners approached the department and relied on the same in their defence taking a specific stand that no evidence was brought on record against the petitioners during the departmental enquiry and the trial Court had in the meanwhile already acquitted the petitioners of the same charges on merits after considering the entire prosecution evidence brought on record.

It is the contention of Mr. Sanjay Kaushal, learned Senior counsel appearing for the petitioners that the same set of witnesses examined by the Inquiry Officer in the domestic enquiry were examined before the trial Court and neither any additional evidence nor statement of witness was brought on record against the petitioners-delinquents who could categorically admit their presence at the time of the incident in the commission of crime. The witnesses produced in the departmental proceedings deposed to exactly the same statements as were recorded by them before the trial Court. Therefore, the present is a case of no evidence. However, the Inquiry Officer still held them guilty of the charges levelled against him in the final enquiry report dated January 21, 2013 submitted to the disciplinary authority for further action.

Upon completion of departmental enquiry, show cause notices were issued by respondent No.4 to petitioners No.1 to 3 on January 23, 2013 and a similar show cause notice dated August 21, 2013 was issued by respondent No.5 to petitioner No.4 calling upon them as to why they be not dismissed from service of the Police Department. The petitioners filed a detailed reply to these show cause notices within the time allowed. Their replies were considered and the impugned orders were passed dismissing all of them from service.

Feeling aggrieved by the orders of dismissal the petitioners appealed to the Inspector General of Police, Hisar Range on March 28, 2013 for setting aside the orders but the appeal was dismissed on December 30, 2013 confirming the dismissal. While the appeal was pending before the appellate authority the Police Department filed Crl. Misc. No.A-90-MA of 2013 in case titled State of Haryana v. Ashok Sheoran and others against the acquittal but the same was dismissed by the Division Bench of this Court by a detailed order dated April 22, 2013 upholding the acquittal. The judgment has been placed on record at Annex P-14. The Division Bench observed in its judgment that the trial Judge examined the entire evidence on record in a correct manner. There was no failure of misreading of evidence by the Court below and, therefore, no interference was called for in the judgment of acquittal. Though it has been observed in the judgment of the High Court passed in appeal that the trial Judge "gave benefit of doubt" to the respondents/accused but a reading of the judgment of the this Court does not reveal at all that the trial Judge gave the accused the benefit of doubt. The acquittal was wholly honourable and can have therefore have no adverse effect on the petitioners either from the service law angle or in criminal law.

The petitioners have filed CM No.11188 of 2016 seeking permission to place on record the letter dated July 06, 2016 passed by the Additional Chief Secretary to Government Haryana, Home Department informing Ashok Kumar Sheoran, HPS through Director General of Police, Haryana, the decision of the Governor of Haryana reinstating him with immediate effect. Ashok Kumar Sheoran was one of the co-accused Police Officers in the same incident in Sessions Case No.06 of 2012 instituted on August 19, 2010 in case titled State v. Ashok Sheoran and nine other accused. The petitioners were accused 2, 5, 7 and 6 in the trial proceedings. The petitioners claim treatment on par with Sheoran. The result of the trial and the dismissal of the criminal appeal manifestly is that a false case was foisted on the petitioners by the police itself, the department where the petitioners served.

Upon notice, the respondent-Department has put in its written statement to contest the case. The facts relating to the incidents have been narrated by long winded repetition which should not detain this Court any longer in view of the honorable acquittal of the petitioners in the criminal trial on the same set of allegations as were imputed in the departmental enquiry. The stock defence stand is that the departmental enquiry was conducted as per the provisions laid down in Rule 16.24 of the Punjab Police Rules, 1934 (PPR) as applicable to Haryana. There is no legal infirmity or inconsistency in conducting the departmental enquiry and in passing consequential orders of dismissal which are reasonable, justified and commensurate with the act of misconduct of the petitioners. A fair and impartial enquiry has been conducted against the petitioners and on the preponderance of probabilities the domestic charge has been proved for which they have been punished with the penalty of dismissal from service. The State objects that the petition is not maintainable due to non-exhaustion of statutory remedies available to the petitioners against the order passed in appeal. A Revision lies to the State Government under Rule 16.32 of the PPR.

However, a revision under 16.32 is limited on grounds of material irregularity in the proceedings or on production of fresh evidence would interference be allowed to the quasi judicial authority. The provision itself in clear words attributes the jurisdiction as a plea for mercy. A plea of mercy demolishes innocence. The petitioners do not claim mercy. The remedy of revision I believe in the facts and circumstances of this case is not an absolute bar on exercise of power of judicial review under Article 226 of the Constitution, which provision has been invoked by the petitioners for ventilation of their grievances. The remedy of revision is neither speedy nor equally efficacious in view of the limitations placed in Rule 16.32 of the PPR. Resort to it, at this stage, will only prolong the agony of the petitioners who have had to bear the agony of a criminal trial. I would, therefore, reject the contention raised by the State based on availability of an alternative remedy. In any case, this Court has entertained the petition and thus the plea appears no longer suitable as a predominant preliminary objection. Justice demands a hearing and judgment on merits, when the material to reach a just conclusion is available on file.

Still further, the State contends in defence of the impugned orders that the petitioners being members of a disciplined force were responsible for protecting the life and property of the citizens of the country, but the petitioners instead of discharging their duties honestly and sincerely indulged in a crime involving moral turpitude. As such the petitioners not only tarnished the image of the Haryana Police but also have rudely shaken faith of the public in the entire police force which is supposed to be their protectors. They had acted in a manner highly unbecoming of police officials. After such acts of serious misconduct have been committed then if the petitioners were allowed to continue in the police force, it would be detrimental to public interest. Guards cannot turn law-breakers and create violent public disorder and incite others to commit crime and, therefore, prompt and urgent action became necessary in the interest of public peace and security of the State to justify the dismissals. There is no bar in conducting the departmental enquiry on the same set of allegations which were levelled in the criminal case. Reference is made to a civil suit filed by the petitioners praying for prohibitory permanent injunction and interim stay of departmental enquiry instituted against the petitioners on the same set of charges as were levelled in the criminal case. The application for injunction was dismissed by the Civil Judge (Senior Division), Karnal vide order dated January 25, 2011 and appeal against the order was dismissed by the lower appellate Court on May 04, 2011 at the interlocutory stage and the main case itself was dismissed on June 04, 2012.

I have heard Mr. Sanjay Kaushal, Senior counsel assisted by Mr. Sajjan Singh Malik, learned counsel for the petitioners and Mr. Siddharth Sanwaria, DAG, Haryana for the State at considerable length with the help of record on the writ file.

Before I proceed any further on the legal issues raised by the petitioners in a case where the criminal trial and the departmental proceedings are based on the same set of allegations and the trial Court acquits the accused on the same evidence produced before the Inquiry Officer then the judgment of the trial Court takes primacy and the enquiry proceedings fade away. To answer this question, it would be necessary to read the charge sheet and the same is, therefore, reproduced in extenso:-

"I, Dalbir Singh, HPS, Deputy Superintendent of Police, Hansi, do hereby charge sheet on the allegations that while you (SI Vijay Pal No.390/HSR, E/HC Mahinder Singh No.1132, Constable Dharambir No.517/SRS, Constable Vinod Kumar No.858/HSR, HC Jagbir Singh No.583/RTK, HC Raj Kumar No.477/RTK and Constable Ishwar Singh No.103/FTB.) were posted in S.T.F. on 11.03.2010, Rajat Aggarwal son of Arvind Kumar R/o H. No.27 Jagan Nath Vihar Colony, Panipat, submitted an application to E/SI Wazir Singh who was present at SD Chowk, Panipat for patrolling duty to effect that yesterday he alongwith his friend Narender Goel were present in his Officer situated at Shri Ram Chowk at about 3.35/4.00 p.m., seven persons who had revolvers in their hands entered into his office. Five of them sat in his office and told him that they were from crime branch and the Superintendent of Police was standing down stairs. They threatened him to arrange for Rs. Ten Lakhs. He said that he does not possess such a huge amount. They asked him to arrange for the money from his relatives. He made a phone call to his uncle Mukesh Kumar and asked him to send the money to his office through his servant. He also made a phone call to his wife Ruchi Aggarwal and asked her to give whatever money was available in the house to the servant. The servant brought Rs. 4,30,000/- from his house and Rs. 70,000/- from his uncle''s shop. Thereafter he made a phone call to his brother-in-law Raja Gupta and asked him to arrange for Rs. 50,000/-. One of the assailants asked him to demand more money from his brother-in-law. He again rang up Raja Gupta and asked him to arrange for Rs. 1,00,000/-. After ten minutes, the amount of Rs. 1,00,000/- was received by him from his brother-in-law. Thereafter all the assailants took away the amount of Rs. Six Lakhs in cash from him and went away. While leaving the spot, they asked him not to follow them or to go down-stairs. The assailants were on a Bolero Jeep white in colour which was parked near Shree Ram Chowk. He thus prayed for taking action against the accused persons. Upon which, the FIR No.261 dated 10.03.2013 under section 395 IPC PS City Panipat was registered. During the investigation the section 397 IPC and 25/54/59 Arms Act were added.

During the course of investigation, the similar incident had taken place in the shop of V.K. Malhotra owner of Malhotra Jewellers. A demand of Rs. Ten lakhs was made by the assailants from V.K. Malhotra. It was agreed that the assailants would be paid Rs. one lakh. One of members of the assailant party would come to his shop at fixed time to take the money. When one of the assailants came to the shop of V.K. Malhotra to collect money, his photograph was captured by CCTV Camera. The photograph and the computer hard disc were taken into possession by investigation officer vide separate recovery memo. The photograph was published in the newspaper. It was identified as that of HC Jagbir Singh No.583 who was posted in S.T.F., Hisar/Rohtak. On the basis of investigation/facts of the case, the section 398 IPC was added. All the aforesaid persons were arrested on 15.03.2010 the basis of sufficient evidence on the file. Six pistols and 59 cartridges were recovered from the possession of the above said persons. On the basis of which section 27/54/59 Arms Act were added. During the investigation, all the aforesaid persons have not cooperated the investigating officer.

Thus, they committed careless and indiscipline being a member of disciplined force and committed a criminal case indulging unlawful/corrupt activities and lower down the image of Police Department in the eyes of Public. They caused breach of trust publically which is highly condemnable and punishable.

Dalbir Singh, H.P.S.

Inquiry Officer,

Dy. Superintendent of Police,

Hansi."

There can hardly be any doubt that the allegations in the charge sheet and the criminal charge involve the same incident and are on the same set of allegations. There can also be no doubt that the witnesses produced by the prosecution in the trial Court were the same in the domestic enquiry. The statements of the prosecution witnesses have been dealt with in great detail by the learned Additional Sessions Judge, Panipat in his order dated November 06, 2012 acquitting the petitioners and others.

It is common ground that shortly before the petitioners were acquitted on November 06, 2012 they were slapped charge-sheets on September 18, 2012. The judgment of the trial Court was produced in the departmental enquiry. The final enquiry report came on January 21, 2013 holding the petitioners guilty of misconduct. I have been taken through the enquiry report and have compared it with the judgment of the trial Court. A total 22 prosecution witnesses were examined in the departmental enquiry and all of them had already deposed before the trial Court. It is Mr. Kaushal''s case that in the presence of recorded testimonies of witnesses on oath in the criminal trial, the Inquiry Officer could not arrive at a different conclusion than was arrived at by a judicial mind and when nothing is added or subtracted from the recorded testimonies of the same witnesses, then the Inquiry Officer cannot be seen as overwriting the depositions already recorded.

In support of this contention Mr. Kaushal relies on the judgment of the Supreme Court in Avinash Sadashiv Bhosale (D) Thr. LRs. v. Union of India and others, (2012) 13 SCC 142. There is no bar in conducting departmental proceedings simultaneously to the criminal trial. There is, however, an exception to the general rule where both the proceedings are based on the same set of facts and the evidence in both the proceedings are common.

In Bhosale the Supreme Court relied on its earlier dicta in G.M. Tank v. State of Gujarat and others, (2006) 5 SCC 446. The latter was a case where parallel proceedings were in progress on the domestic and criminal front. The criminal trial led to acquittal. The dismissal was a result of departmental enquiry. The Supreme Court held that in the case of a departmental enquiry in criminal proceedings based on the same set of facts, charges, evidence and witnesses and where the employee is honorably acquitted in the criminal trial during pendency of proceedings challenging dismissal then findings to the contrary in the departmental proceedings than those concluded by the trial Court would be unjust, unfair and oppressive. A dismissal order would not be sustainable. An argument was raised before the Supreme Court and noticed in para.13 of the judgment that acquittal of appellant G.M. Tank in the Special Case is a relevant factor, as the appellant has been acquitted on merits and the acquittal is clean and not based on benefit of doubt or any technical proposition. The same evidence was produced in the departmental enquiry and therefore, the dismissal order is bad in law. The Supreme Court specifically considered this issue and having read the charge framed in the criminal court and the charge sheet issued in the disciplinary proceedings found that they matched which clearly go to show that both the charges were grounded upon the same set of facts and evidence and also pertained to the known source of income of the accused (G.M. Tank) and the presumption raised that the said amount was obtained by him by illegal and corrupt means. Answering the issue in para.30 of the report, the Supreme Court held as follows:-

"In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant''s residence, recovery of articles therefrom."

Still further, Mr. Kaushal relies on a judgment of the Single Judge of this Court in Khurshid Ahmad v. State of Haryana and others (CWP No. 1689 of 2009) decided on July 16, 2009 where again the question was pointedly raised as to what would be the fate and effect of acquittal of an employee in a criminal proceedings, who is dismissed from service on the basis of the same very allegations by the disciplinary authority after having been charge-sheeted and dismissed on the basis of a findings in the disciplinary enquiry. The petitioner therein, a Constable in Haryana Police had been accused in an FIR for commission of offences under Section 354, 376 (2) (g) IPC read with Section 3 (xi) of the SC/ST Act. The FIR was lodged by the prosecutrix who accused the petitioner of being one of seven who had raped her for three years against her wishes. The petitioner was acquitted in the trial and then issued charge-sheet to be dealt with departmentally on the same charge. In that case, the petitioner was acquitted when the prosecutrix turned hostile including other prosecution witnesses.

The question before the Bench was whether the case fell in the exception of sub-Rule (1) (d) of Rule 16.3 PPR where witnesses have been won over or whether the case fell in the general protection of Rule 16.3 which provides that when a Police Officer had been tried and acquitted by a Criminal Court he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in criminal case whether actually led or not, unless the case falls in one of the exceptions (a) to (e). The State cited exception in its favour. The petitioner pressed otherwise. This Court considered the law in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another, AIR 1999 SC 1416, The Managing Director, State Bank of Hyderabad and another v. P. Kata Rao, AIR 2008 SC 2146, G.M. Tank (Supra), Sukhjit Singh Khaira v. State of Punjab and others, 2005 (1) SCT 50 (DB) and Balwant Singh, Ex.Constable v. Inspector General of Police and others, 1983 (1) SLJ 176 on the interpretation of Rule 16.3 and held that the order of dismissal passed against Khurshid Ahmad was such that the case attracts the exception even in the face of plea raised that the acquittal of the petitioner in the criminal trial was on account of the fact that the witnesses were won over. The prosecutrix did not support the case of the prosecution while appearing before the Inquiry Officer but still the petitioner was held guilty of misconduct. The Court concluded that the impugned order of dismissal was not based on any material or evidence. The Court held that the case falls in the category of no evidence and, therefore, the findings recorded by the Inquiry Officer were perverse and based on no evidence. The dismissal order was set aside.

It may be noticed that in G.M. Tank case the findings recorded in the departmental proceedings were not allowed to stand in view of the findings recorded by the Criminal Court subsequent to the findings in the disciplinary proceedings but in the present case, the findings recorded by the Criminal Court acquitting the petitioners were prior to the conclusion of the departmental proceedings and recording of evidence and returning findings. In the present case, the charge sheet was issued shortly before the conclusion of the protracted criminal case and the only reason that I can think of in issuing the charge-sheet when the trial was all but done and awaiting pronouncement of judgment, is that the respondent police department must have been conscious that the trial was going to fail and the only way to keep the petitioners out of service was to embroil them in a disciplinary proceedings which to my mind was not a fair thing to do and was clearly contrary to the mandate in Rule 16.3 PPR, 1934 in its application to Haryana.

Rule 16.3 (1) provides for action to be taken following judicial acquittal. The case of the present petitioners does not fall in any of the exceptions carved out from Rule 16.3 (1) (a) to (e) because the acquittal was honorable without giving benefit of doubt. The learned Law Officer has not been able to persuade me on any of the grounds taken in the written statement or from case law anything startling which could definitely tilt the case in favour of the State and against the petitioners. On the other hand, there is substantial merit in the submissions of Mr. Kaushal that the disciplinary authority was debarred to order conduct of the enquiry and inflict punishment on the same charge upon which the petitioners were acquitted by a court of competent jurisdiction. In the present case, the punishing authority fell in grave error in observing that the prosecution had been won over to bring the case in the exceptions. There has been abject failure in the report of the Inquiry Officer, of the disciplinary authority and the appellate authority to have addressed themselves to the real issues involved and have been easily misled to give an improper justification in ordering the dismissal of the petitioners from service. Besides, one of the co-accused namely, Ashok Kumar Sheoran HPS has been reinstated to service on July 06, 2016. The high and mighty has found favour of the administration obtaining reinstatement to service while the underlings are before the Court craving for justice. What was once a very grave accusation has turned into a verdict of not guilty. What the police could not achieve in the criminal trial cannot be allowed to be achieved in a domestic enquiry on the same evidence, same incident and charge.

In the same vein, Mr. Kaushal has relied on the judgment of the Single Bench in Punjab State through its Collector and another v. Ex. Constable Gulzar Singh rendered in RSA No.2394 of 2010 vide judgment and order dated February 01, 2012. I agree with him that the ruling helps the petitioners to succeed as doe the case law relied upon and noticed above. The petitioners have been wronged by dismissal from service. They are innocent of the crime and therefore not guilty of misconduct on the same set of facts and circumstances. The High Court when delivering the judgment in appeal against acquittal filed by the State by oversight wrongly recorded in the order dated April 22, 2013 that the petitioners had been given the benefit of doubt by the trial court. The acquittal was on merits, the prosecution witness standing firm to their ground. Even on balancing the preponderance of probabilities, the impugned orders are not sustainable. To hold against the petitioners would be a travesty of justice. It would mean that the judgment of the trial Court and the High Court in appeal against acquittal is written off. A judicial verdict, virtually suffering Ctrl Alt Del on a keyboard held by the hands of the police. What could be graver? Instead, the prosecutors deserve to be punished. The police when fail to police the police and bring home the charge as grave as decoity, a part of the conscience of the society dies. The Court has to contend with the law and not suspicion, however grave it might be. The law is in favour of the petitioners.

As a result of the above discussion, and for the reasons recorded above the writ petition is allowed as there is found substantial merit in it. The impugned orders dismissing the petitioners from service are held illegal and arbitrary and not legally sustainable and therefore, a writ of certiorari is issued setting them aside. Consequentially, the appellate orders affirming the penalty of dismissal from service will suffer the same fate and are quashed. The petitioners are ordered to be reinstated to service with all consequential benefits flowing therefrom.