Om Dutt Tyagi vs State Of U.P. And Others
2012 Latest Caselaw 544 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment reserved on 05.04.2012
 
Judgment delivered on 20.04.2012
 
Case :- WRIT - A No. - 55390 of 2011
 

 
Petitioner :- Om Dutt Tyagi
 
Respondent :- State of U.P And Others
 
Petitioner Counsel :- Ramesh Chand Tiwari, Niraj Tripathi, P.S. Baghel, Vinod Tripathi
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Manoj Misra,J.

1. I have heard Sri Shashi Nandan, learned senior counsel assisted by Sri Vinod Tripathi for the petitioner and the learned standing counsel for the respondents and have perused the record. As the pleadings are complete, with the consent of the learned counsel for the parties, the petition is being disposed of finally.

2. By this writ petition, the petitioner has sought for quashing of the order dated 10.05.2011 passed by the Commandant (respondent No.2), 41st Battalion PAC, Ghaziabad, as also the appellate order dated 2.7.2011 passed by the Deputy Inspector General (respondent No.4), PAC Meerut Division, Meerut thereby affirming the order dated 10.5.2011, whereby the petitioner has been inflicted with major penalty of reduction to the lowest scale of pay for a period of three years.

3. The relevant facts of the case are that while the petitioner was posted as Head Constable in the 41st Battalion PAC, district Ghaziabad, he and his son were implicated in case crime 304 of 2008 under Sections 420, 467, 468, 471 and 504 I.P.C at P.S. Sector 49, district Gautam Budh Nagar. In reference to the said case, on 22.08.2008, the petitioner was taken into judicial custody and was released on bail on 05.11.2008 under the bail order granted by this court on 17.10.2008. In the meantime, by order dated 01.09.2008, the petitioner was suspended consequent to remaining in jail for a period exceeding 48 hours. On being released on bail, the petitioner reported on duty on 07.11.2008. In the meantime, in the aforesaid criminal case, a charge-sheet was submitted. From the record of the writ petition, it appears that the petitioner challenged the charge-sheet as well as the consequential criminal proceedings by means of Criminal Misc. Application No. 35611 of 2010 wherein an interim order was passed thereby staying further proceedings of the criminal case. As the criminal case proceeding was stayed, the Deputy Commanding Officer, 41st Battalion PAC, Ghaziabad, on 08.11.2010, issued a departmental charge-sheet to the petitioner, which is being reproduced below:-

"eq[; vkj{kh 51028 vksenRr R;kxh]

ch ny 41 oha okfguh ih,lh]

xkft;kcknA

,rn}kjk vkidks fuEufyf[kr vkjksiksa ls vkjksfir fd;k tkrk gS%&

^^o"kZ 2008 esa tc vki 41oha okfguh ih,lh] xkft;kckn ds ch ny esa eq[; vkj{kh ds in ij fu;qDr Fksa] rc vkids fo:) Fkkuk lSDVj&49 tuin xkSrecq)uxj esa eq0v0la0 [email protected] /kkjk [email protected]@[email protected]@504 Hkk0n0fo0 ds vUrxZr] vfHk;ksx iathd`r gksuk rFkk mDr vfHk;ksx ds vUrxZr fxj¶rkj gksdj ftyk dkjkxkj xkft;kckn esa fu:) gksuk rFkk mDr izdj.k esa fuyfEcr fd;k tkukA^^

lk{kh ftu ij vkjksiksa ds leFkZu esa fopkj fd, tkus dk izLrko gS%&

dz0la0

lk{kh dk uke o irk

Lkk{; dk laf{kIr fooj.k

Jherh euh"kk flag lgk;d lsukuk;d]

41oha okfguh ih,lh]

xkft;kckn

IkzkjfEHkd tkWp vk[;k izekf.kr djsxhA

nyuk;d lR;ohj flag ch ny 41oh] okfguh ih,lh] xkft;kcknA

}kjk fnukad 29-08-2008 dks izLrqr fjiksVZ izekf.kr djsxsA

Jh lh0,l0 ;kno Fkkuk lSDVj&49] xkSrecq)uxj

viuh fjiksVZ fnukad% 27-08-2008 dks izekf.kr djsaxsA

vkj{kh equsUnz dqekj ch ny 41oha okfguh ih,lh] xkft;kckn

vodk'k ij jokuxh ,oa vodk'k ls okilh fnukad dks vuqifLFkfr ntZ djuk izekf.kr djsxsA

Tk; flag iq= Jh [ktku flag fu0 lksj[kk Fkkuk lSDVj&49 tuin xkSrecq)uxj

:i;s dk ysu&nsu Bhd ls u gksuk izekf.kr djsxsA

nsoh flag iq= fc'ku flag flag fu0 lksj[kk Fkkuk lSDVj&49 tuin xkSrecq)uxj

:i;s dk ysu&nsu Bhd ls u gksuk izekf.kr djsxsA

,rn~}kjk vkils izR;sd vkjksi ds mRrj esa vius tokc dk fyf[kr fooj.k 15 fnol esa vFkok mlls iwoZ izLrqr djus dh vis{kk dh tkrh gSA vkidks lpsr fd;k tkrk gS fd ;fn v/kksgLrk{kjh }kjk vuqer le; ds Hkhrj vkils ,slk dksbZ fyf[kr fooj.k izkIr ugh gksrk gS rks ;g mi/kkj.kk dh tkosxh fd vkidks dqN ugh izLrqr djuk gS vkSj ekeys esa ,rn}kjk vkns'k ikfjr dj fn;s tkosxsA

lkFk gh lkFk vkils v/kksgLrk{kjh dks fyf[kr :i ls ;g lqfuf'pr djus dh vis{kk dh tkrh gS fd D;k vki O;fDrxr lquokbZ ds fy;s bPNqd gS vkSj ;fn vki fdlh lk{kh dh izfrijh{kk djuk pkgrs gS rks vius fyf[kr mRrj ds lkFk mldk uke o irk vkSj lk{; ¼ftls izR;sd ,sls lk{kh ls nsus dh izR;k'kk dh tk;sxh½ dk laf{kIr fooj.k izLrqr djsA lkFk gh vkidks lpsr fd;k tkrk gS fd foHkkxh; dk;Zokgh ds nkSjku izfrfuf/k izLrqr djus dk dksbZ izkfo/kku ugh gSA

g0 viBuh;

ihBklhu vf/kdkjh]

41oha okfguh ih,lh]

xkft;kcknA

izekf.kr fd;k tkrk gS fd vkjksih eq[; vkj{kh 51028 vksenRr R;kxh ch ny 41oha okfguh] ih,lh] xkft;kckn dks vkjksi i= i

g0 viBuh;

    vkjksi i= ,oa tkWp vk[;k dh ,d izfr izkIr dh              ihBklhu vf/kdkjh]
 
								    41oha okfguh ih,lh]
 
								        xkft;kcknA"
 

4. The petitioner submitted a reply to the charge-sheet thereby admitting that a criminal case was lodged against him as well as his son and that though he was taken in judicial custody but has since been released on bail. The petitioner, however, contested the validity of departmental proceedings, inter alia, on the following grounds:

(a) that the departmental proceeding was premature as on the same charge a criminal case was pending in court, whose proceedings were stayed by the high court;

(b) that where on the same charge a criminal trial is pending the departmental proceeding should be kept in abeyance, as the defense taken in the departmental proceeding might prejudice the interest of the petitioner in the criminal trial;

(c) that the criminal case pertained to some private deal of the son of the petitioner with the complainant in connection with which the son of the petitioner had issued a cheque in favour of the complainant, which got dishonored, therefore, the petitioner was maliciously dragged into the controversy even though he had not drawn the cheque; and

(d) that in any case the allegations in the criminal case related to the private life of the petitioner, having no connection whatsoever with the duties or conduct of the petitioner as a member of police force or with his service, therefore, the departmental proceeding on such a charge, before any decision of the criminal court, was totally arbitrary, unwarranted and without jurisdiction.

5. In spite of protests by the petitioner against the continuance of the departmental enquiry, the departmental enquiry proceeded, as a criminal trial, where statement of the complainant of the criminal case as well as of several other witnesses was recorded, and ultimately a report was submitted by the enquiry officer, the concluding portion of the enquiry report, as found from annexure no.5 to the writ petition, is being reproduced below:-

"fu"d"kZ%&

lEiw.kZ foHkkxh; dk;Zokgh ds nkSjku i=koyh ij miyC/k vfHkys[kh; lk{;ksa] vafdr fd;s x;s c;kuksa vkfn ds fo'ys"k.k ls ik;k x;k fd vkjksih eq[; vkj{kh ¼ih½ [email protected] vksenRr R;kxh fnukad% 08-08-2008 ls Lohd`r 'kqnk 15 fnol mikftZr vodk'k ij jokuk gqvk Fkk ftls ckn lekIr vodk'k vius drZO; ij fnukad 24-08-2008 ds iwokZUg esa mifLFkr gksuk pkfg, Fkk] ijUrq fnukad 22-08-2008 dks eq0v0la0 [email protected] esa fxj¶rkj gksdj ftyk dkjkxkj xkft;kckn esa fu:) gksus ds dkj.k fnukad 7-11-2008 dks 75 fnol 19 ?k.Vk 25 feuV vFkkZr 76 fnol vukf/kd`r :i ls vuqifLFkr jg dj drZO; ij mifLFkr gksuk Li"V gqvk gSA

vkjksih eq[; vkj{kh ¼izks½ [email protected] vksenRr R;kxh us vius yMds vjfoUn R;kxh ds lkFk feydj t; flag iq= Jh [ktku flag fuoklh xzke lksgj[kk tuin xkSrecq)uxj ls vius xzke dSFkokMh tuin esjB fLFkr 25 ch?kk tehu dks cspus ds ,ot esa nl yk[k :i;s crkSj c;kuk ysdj mlds uke tehu dh jftLVªh ugh fd;k tkuk] fo'okl ds fy;s t; flag dks vius yMds ls 10 yk[k :i;s dk pSd fnyk;k tkuk cSad esa psd ds ckmUl gksus ij t; flag iq= Jh [ktku flag }kjk vkjksih eq[; vkj{kh ¼ih½ vksenRr R;kxh o mlds yMds vjfoUn R;kxh ds fo:) Fkkuk lsDVj 49 xkSrecq)uxj esa eq0v0la0 [email protected] /kkjk [email protected]@[email protected]@504 Hkk0n0fo0 ds vUrxZr iathd`r djk;k tkuk rFkk vkjksih eq[; vkj{kh ¼izks0½ 51028 vksenRr R;kxh dk mijksDr izdj.k esa fnukad% 22-08-2008 ls 5-11-2008 rd 76 fnol ftyk dkjkxkj tuin xkft;kxkn esa fu:) gksuk Li"V gqvk gSA izdj.k orZeku esa ekuuh; U;k;ky; tuin&xkSrecq)uxj esa fopkjk/khu gSA

vkjksih eq[; vkj{kh ¼izks0½ [email protected] vksenRr R;kxh ^,Q^ ny mijksDr izdj.k esa iw.kZ :i ls nks"kh gS] tks vkjksih eq[; vkj{kh ¼ih½ vksenRr R;kxh ds viu drZO;ksa ds izfr ?kksj ykijokgh vuq'kklughurk ,oa mnn.Mrk dks ifjyf{kr djrk gSA

vr% eSa ihBklhu vf/kdkjh vkjksih eq[; vkj{kh ¼izks0½ [email protected] vksenRr R;kxh ^,Q^ ny }kjk vius drZO;ksa ds izfr ?kksj ykijokgh] mnklhurk ,oa mnn~.Mrk cjrus ,oa mlds mijksDr d`R; ds fy;s m0iz0 v/khuLFk Js.kh ds iqfyl vf/kdkfj;ksa dh ¼n.M ,oa vihy½ fu;ekoyh&1991 ds fu;e 4 ds mi fu;e 1 ds [k.M ^d^ esa of.kZr nh?kZ n.M ¼rhu½ ds vUrxZr rhu o"kZ ds fy; eq[; vkj{kh ds U;wure osru ij osrukor fd;s tkus ,oa vkjksih eq[; vkj{kh ds lsokfuo`Rr ij izLFkku djus dh fLFkfr esa U;wure osru ij isa'ku dk fu/kkZj.k djus rFkk [email protected] esa fu:) vof/k fnukad 22-08-2008 ls 7-11-2008 rd dqy 78 fnol dk dke ugh rks nke ugh ds fl)kUr ds vk/kkj ij fcuk osru vodk'k Lohd`r fd;s tkus dh laLrqfr djrk gwWA

;g vkns'k lsukuk;d 41oha okfguh ih,lh xkft;kckn dh lgefr ds mijkUr ykxw gksxsA

layXud% i=koyh la[;k%ih,Q&[email protected]

ewy:i esa e; layXu dzaekd 01 ls 159 rd ,oa

dzekad 01 ls 107 rd rFkk i=koyh la[;k v&[email protected]

dzekad 01 ls 13 rdA

g0 viBuh;

¼v'kksd dqekj½

ihBklhu vf/[email protected];d

41oha okfguh ih,lh]

xkft;kcknA"

6. Acting on the aforesaid report, the Commandant, 41st Battalion PAC, Ghaziabad, on 21.04.2011, issued a show-cause notice to the petitioner, along with copy of the enquiry report. The contents of the show cause notice, as found from annexure no.6 to the writ petition, are being reproduced below:-

"dkj.k crkvks uksfVl

eq0vk0 ¼ih½ [email protected] vksenRr R;kxh]

}kjk&nyuk;d ^,Q^ nyA

tc vki o"kZ 2008 esa 41oha okfguh ih,lh] xkft;kckn ds ^^ch^^ ny esa eq[; vkj{kh ds in ij fu;qDr Fksa] rc vki fnukad 08-08-2008 ls 15 fnol Lohd`r 'kqnk mikftZr vodk'k ij jokuk gq, Fksa] blh e/; Fkkuk lsDVj&49 tuin xkSrecq)uxj esa eq0v0la0 [email protected] /kkjk [email protected]@[email protected]@504 Hkknfo dk vfHk;ksx iathd`r gksus rFkk mlesa fyIr ik;s tkus ij vki fnukad 23-08-2008 ls 05-11-2008 rd ftyk dkjkxkj] xkft;kckn esa fu:) jgs izdj.k esa mijksDr d`R; ds fy, fnukad 01-09-2008 dks fuyfEcr fd;k x;kA vkidk mijksDr d`R; vkids drZR;ksa ds izfr ?kksj ykijokgh ,oa LosPNkpkfjrk dks ifjyf{kr djrk gSA

vkids mijksDr d`R; ds fy, izkjfEHkd tkWp okfguh dh lgk;d lsukuk;d Jherh euh"kk flag ls lEikfnr djk;s tkus ds mijkUr vkidks fnukad 22-08-2008 ls 07-11-2008 rd dqy 78 fnol yxkrkj vius drZO; ls vuqifLFkr jgus dk nks"kh ikrs gq, foHkkxh; dk;Zokgh okfguh ds milsukuk;d Jh v'kksd dqekj ls lEikfnr djk;h x;hA ftlesa vkidks vkjksi i= dh izfr fnukad 08-11-2010 dks izkIr djk;s tkus ds mijkUr viuk fyf[kr Li"Vhdj.k fnukad 22-11-2010 dks izLrqr fd;kA vkids fyf[kr Li"Vhdj.k dks ihBklhu vf/kdkjh }kjk larks"ktud u ikrs gq, vfHk;kstu i{k dh dk;Zokgh esa vkjksih eq[; vkj{kh ¼ih½ dks izfrijh{k.k gsrq 10 fnol dk vfrfjDr le; iznku fd;k x;kA ftlesa vkjksih eq[; vkj{kh ¼ih½ }kjk ihBklhu vf/kdkjh ls izfrijh{k.k fd;k x;kA

vkjksi%&

1- o"kZ 2008 esa 41oha okfguh ih,lh] xkft;kckn ds ^^ch^^ ny esa eq[; vkj{kh ds in ij fu;qDr Fksa] rc vki fnukad% 22-08-2008 ls 07-11-2008 rd dqy 78 fnol fcuk vodk'[email protected] ds vius drZO; ls vukf/kd`r :i ls vuqifLFkr gksdj mifLFkr gq,A

2- eq0v0la0 [email protected] /kkjk [email protected]@[email protected]@504 Hkknfo dk vfHk;ksx Fkkuk lSDVj&49 tuin xkSrecq)uxj esa iathd`r gksus ds mijkUr fnukad% 23-08-2008 ls 05-11-2008 rd ftyk dkjkxkj] xkft;kckn esa fu:) gksuk rFkk mDr izdj.k esa fnukad% 01-09-2008 dks fuyfEcr fd;s tkus ds vkjksi esaA

mDr lEcU/k esa djk;h x;h foHkkxh; dk;Zokgh esa ihBklhu vf/kdkjh }kjk izLrqr dh x;h QkbfUMax dk esjs }kjk voyksdu fd;k x;kA ftlesa eq[; :i ls ihBklhu vf/kdkjh }kjk vafdr fd;k x;k fd fnukad 22-08-2008 ls 07-11-2008 rd dqy 78 fnol rd vukf/kd`r :i ls vuqifLFkr jgkA ftlds QyLo:i foRrh; gLriqfLrdk [k.M&2] Hkkx&2 ls pkj ds ewy fu;e&73 esa of.kZr fl)kUr ^dke ugh rks nke ugh^ ds vk/kkj ij dksbZ osru HkRrk u fd;s tkus ds vUrxZr dkj.k crkvks uksfVl dh ,d izfr vkidks bl funsZ'k ds lkFk fuxZr dh tk jgh gS fd uksfVl dh ,d izfr izkIr djus ds mijkUr viuk fyf[kr Li"Vhdj.k 15 fnol esa izLrqr djsa fd D;ksa u vkidks dkj.k crkvks uksfVl esa vafdr vukf/kd`r :i ls vuqifLFkr vof/k dk fcuk osru vodk'k Lohd`r dj fn;k tk;A vkidk fyf[kr Li"Vhdj.k ;fn fu/kkZfjr le; esa izkIr gks tkrk gS rks ml ij lgkuqHkwfriwoZd fopkj fd;k tk;sxk vU;Fkk Li"Vhdj.k ds vHkko esa rnuqlkj vfxze vkns'k ikfjr dj fn, tk;sxsA dkj.k crkvksa uksfVl esa vafdr le; esa ;fn vki i=koyh dk voyksdu djuk pkgrs gS rks blh vof/k esa fdlh Hkh dk;Z fnol esa dj ldrs gSA

layXud% Qkbf.Mx dh izfr

i=kad% ih,Q&[email protected]

fnukad 21-4-2011

g0 viBuh;

lsukuk;d

41oha okfguh ih,lh]

xkft;kcknA"

7. On the issuance of the show cause notice, it appears, that the petitioner approached this Court by means of Writ Petition No. 26732 of 2011, inter alia, on the ground that the charge-sheet did not disclose any misconduct of the petitioner, therefore, the enquiry, as also the consequential show-cause notice was misconceived, and further since the matter was pending before the criminal court, the proceeding on same charge, which had no connection with the service of the petitioner, was premature. The said writ petition was disposed of by an order dated 09.05.2011, the operative portion thereof, is being reproduced below:

"Once proceeding in criminal case has been got stayed and for misconduct proceeding under Rule 4 of 1991 Rules had been undertaken and therein based on the inquiry report, show cause notice has been issued then it would be much more expedient and in the interest of justice that all the issues which have been sought to be raised before this court, same be raised before the Disciplinary Authority, who will objectively consider the reply so submitted by the petitioner and thereafter take appropriate decision on the same, preferably within period of next three months from the date of production of certified copy of this order There is no occasion for this Court, to intervene, at this stage, where mere show cause notice has been issued, and all the pleas being raised before this Court can be well raised. With these observations, writ petition is disposed of."

8. The petitioner, thus, submitted his reply to the show cause notice, therein taking all possible pleas before the disciplinary authority. The disciplinary authority, however, by his order dated 10.05.2011 imposed upon the petitioner, the punishment of reduction to the lowest scale of pay for a period of three years. Against this order, the petitioner preferred an appeal before the Deputy Inspector General, PAC Meerut Division, Meerut. The appeal of the petitioner was dismissed and the order dated 10.05.2011 was affirmed. Against the aforesaid orders, the present petition has been filed.

9. Sri Shashi Nandan, senior counsel has assailed the validity of the impugned orders on the following grounds:

(a) The manner in which the disciplinary proceedings against a police officer of the subordinate rank are to be conducted is provided for by the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as 'Rules 91'). By the said Rules, procedure for imposing major penalty is provided for in Appendix I, and the manner in which a charge sheet is to be drawn is provided for by FORM 1. The charge sheet of the instant case was not drawn as per FORM 1, in as much as, it neither disclosed the breach of any rule of conduct by the petitioner nor it narrated any act of the petitioner, which might have amounted to misconduct relating to discharge of his duty as a police officer. Further, the charge sheet did not permit any enquiry into the correctness of the allegation made in the criminal case as it only referred to the factum of lodging of the criminal case, and not to the acts of the petitioner. Thus, it was not open for the enquiry officer to travel beyond the charge sheet and hold, as he did, the petitioner guilty of the acts constituting the offense, which otherwise was within the exclusive domain of the criminal court. Therefore the whole proceeding stood vitiated.

(b) The departmental proceedings were premature as they only referred to lodging of a criminal case against the petitioner, which was subject matter of trial before the criminal court, and till its decision, there was no justification to hold departmental proceedings, particularly when the criminal case was not with reference to the conduct of the petitioner in relation to his service.

(c) The punishment that was awarded to the petitioner was higher than the one that was proposed in the show- cause notice dated 21.04.2011 by which explanation was sought from the petitioner only with regard to forfeiture of pay of 78 days for the period between 22.08.2008 to 07.11.2008, during which the petitioner had remained absent, in accordance with the provisions of Rule 73 of Financial Handbook Volume-II Part 2 to 4. Since no explanation was sought from the petitioner with regard to imposition of the punishment of reduction to the lowest scale of pay, the order of punishment stood vitiated for being in violation of the principles of natural justice.

10. Per contra, the standing counsel on behalf of the state-respondents submitted that there is no embargo on a departmental enquiry being held on the same charge on which a criminal trial is pending. He submitted that since in the present case, the proceedings of the criminal trial were stayed, therefore, it was open for the disciplinary authority to draw charge-sheet and to conclude the departmental proceedings. As regards the punishment being higher than the one proposed in the notice, the standing counsel submitted that under the Rules, 1991 there was no requirement for the disciplinary officer to propose punishment, rather it is the enquiry officer, who may recommend the punishment, as per the provisions of the Appendix I to the Rules, 1991. He further submitted that since the enquiry officer, in his report, had proposed the punishment of reduction to the lowest scale of pay for a period of three years, and the enquiry report was supplied to the petitioner along with the show-cause notice, the petitioner had sufficient opportunity to represent against the proposed penalty, which he did, in his reply to the show cause notice, therefore, no prejudice was caused to the petitioner on account of a lower punishment being proposed in the show cause notice than what was imposed by the order of the disciplinary authority.

11. Before analysing the weight of the rival submissions it would be useful to examine the relevant provisions of the service rules that govern the field. It is admitted to the counsel for the parties that the manner in which a departmental enquiry is to be carried out, with respect to police officers of the subordinate ranks, like the petitioner, is regulated by the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as 'Rules 91') framed by the Governor in exercise of his powers under sub sections (2) and (3) of section 46 read with sections 2 and 7 of the Police Act, 1861 in supersession to all existing rules in that behalf. Major penalties are provided in Rule 4 (a) of Rules, 1991, as under:-

"4. Punishment:- (1) The following punishments may, for good and sufficient reasons and as hereinafter provided, be imposed upon a Police Officer, namely:-

(a) Major Penalties:-

(i) Dismissal from service.

(ii) Removal from service.

(iii) Reduction in rank including reduction to a lower-scale or to a lower stage in a time scale."

Rule 5 (1) of the Rules, 1991 provides the procedure for imposition of major penalty, as follows:-

"5. Procedure for award of punishment:- (1) The cases in which major punishments enumerated in clause (a) of sub-rule (1) of Rule 4 may be awarded, shall be dealt with in accordance with the procedure laid down in sub-rule (1) of Rule 14."

Rule 14 (1) of the Rules, 1991 provides, as follows:

"14. Procedure for conducting departmental proceedings:- (1) Subject to the provisions contained in these Rules, the departmental proceedings in the cases referred to in sub-rule (1) of Rule 5 against the police officers may be conducted in accordance with the procedure laid down in Appendix-I."

Appendix I to the Rules, 1991 lay down the procedure in detail, as follows:-

" APPENDIX I

Procedure relating to the conduct of departmental proceedings against police officer

[See Rule 14(1)]

Upon institution of a formal enquiry such police officer against whom the enquiry has been instituted shall be informed in writing of the grounds on which it is proposed to take action and shall be afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be used in the form of a definite charge or charges as in Form 1 appended to these Rules which shall be communicated to the charged police officer and which shall be so clear and precise as to give sufficient indication to the charged police officer to the facts and circumstances against him. He shall be required, within a reasonable time, to put in, in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the Inquiry Officer so directs an oral enquiry shall be held in respect of such of the allegation as are not admitted. At that enquiry such oral evidence will be recorded as the Inquiry Officer considers necessary. The charged police officer shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish:

Provided that the Inquiry Officer may, for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the ground thereof. The Inquiry Officer may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged police officer."

As per Appendix I the charges have to be drawn in the manner as contained in the Form 1, which is being reproduced below:

" FORM 1

Form of charge to be used in proceedings under Section 7 of the Police Act, 1861

Office of the

To

Dated:..........199

(Full name and designation of the police officer charged)

You are hereby charged as follows:-

(1) that you on (or about) (or between) .............. and ...............dated) while posted (as designation)

(Facts of the case)

and hereby committed a breach of rule.......................or, were guilty of failure to discharge your duty, or etc.

Evidence which it proposed to consider in support of the charge--

	(I)    +
 
	(II)   +
 
	(III)  +
 
	     (2) that you * etc.
 
	    (3) that you * etc.
 
	            +(to be repeated as many time as there charges)
 

*You are hereby required on or before................ to put in a written statement of your defense in reply to each of the charges. You are warned that if no such statement is received from you by the undersigned within the time allowed, it will be presumed that you have none to furnish, and order's will be passed in your case accordingly.

You are further required simultaneously to inform the undersigned in writing whether you desire to be heard in person and , in case you wish to examine or cross-examine any witnesses to submit along with your written statement their names and addresses together with a brief indication of the evidence which each such witness shall be expected to give.

(Signature and designation of Inquiring Officer)

(For and on behalf of*)

Certified that the charge has been read over and explained to................(party charged) in simple Hindi and a copy of the same was handed over to---------------- Received a copy of charge.

(Signature and Designation of Inquiring Officer)

Signature of party charged.

At the end of the Form I there are instructions for the department, which being relevant, are being reproduced below:

"Instructions:- (I) The charge sheet should be given to the person concerned and his signature should be taken on a copy of the charge-sheet. If that is not possible, it should be served by registered post.

(II) Each charge should be drawn up precisely and clearly, care being taken to avoid vagueness.

(III) State the act, or commission by the Government servant with as much precision as possible.

(IV) If the act, or commission can be related to any specific rule or order it should be shown here, if not a general statement like "were there by guilty of dishonesty, dereliction of duty" etc. should be.

(V) It is not necessary that the evidence should be set in detail. It is enough to specify the different places evidence which it is proposed to take into account against the Government servant charged e.g. statement of so and so or letter or report of so and so, dated such and such. Care should be taken, however, to see that the evidence cited is exhaustive as no further place of evidence can be considered against the Government servant charged later on, unless he is given fresh notice of it and so also an opportunity to meet it."

12. A perusal of the provisions noticed above, goes to show that the charge-sheet must contain the acts of the delinquent officer, which constitute misconduct. Not only that, an effort should be there to relate the said act, which constitutes misconduct, with some specific rule, if not, then there should be a general statement like being guilty of dishonesty, dereliction of duty, exhibiting conduct unbecoming of a police officer, etc.

13. In the present case, the charge-sheet dated 08.11.2010, which has been reproduced above, does not disclose any act of misconduct that might have been committed by the petitioner. The charge-sheet only discloses the fact that a criminal case was registered against the petitioner in which the petitioner was arrested and consequently suspended. The charge-sheet does not disclose the manner in which the petitioner misconducted himself, which resulted in institution of the criminal case. And in any case it does not disclose as to which conduct rule was breached by the petitioner so as to be departmentally tried for imposition of major penalty.

14. Even otherwise, it is clear from the record that the criminal case did not relate to the conduct of the petitioner as a police officer. The criminal case related to dishonor of a cheque issued by petitioner's son in favour of the complainant. It is not the charge that the petitioner abused his position as a police officer by influencing the investigation officer so as to exonerate the petitioner of the charges or that he got the lodging of the FIR delayed. In any case here was a case where the police submitted charge sheet in court, but the high court stayed the proceedings of the criminal case.

15. The only charge leveled against the petitioner, as is evident from the charge sheet, is that a criminal case was registered against him for which he was arrested and consequently suspended. This by itself is no charge to justify departmental proceeding. Had it been that the petitioner committed an offense displaying such and such conduct, which was unbecoming of a police officer, then probably an enquiry could have been justified. Otherwise, the ground on which the petitioner has been departmentally tried is usually a ground to keep an employee under suspension either pending investigation or pending trial, as would be clear from Rule 17(1)(b) of the Rules, 1991, which is reproduced below:

"17(1)(b)- A Police Officer in respect of or against whom an investigation, enquiry or trial relating to a criminal charge is pending may at the discretion of the appointing authority under whom he is serving be placed under suspension, until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Police Officer or is likely to embarrass him in the discharge of his duties or involves moral turpitude. If the prosecution is instituted by a private person on complaint, the appointing authority may decide whether the circumstances of the case justify the suspension of the accused."

16. What I find from the enquiry report is that the enquiry officer conducted a pseudo trial to find out whether the allegations against the petitioner in the criminal case were true or false, even though the allegations neither formed the basis of the charge sheet nor they were related to the conduct of the petitioner as a police officer. In the aforesaid background I am of the considered view that the departmental proceedings suffered from fundamental flaw of being beyond the scope of the charge sheet, as also the charge sheet being vague and not drawn in accordance with the Rules, 1991.

17. The Apex Court in the case of Union of India and Others v. Gyan Chand Chattar reported in (2009) 12 SCC 78, in paragraph Nos. 32, 33, 34 and 35, observed as follows:-

"32. In Surath Chandra Chakravarty v. The State of West Bengal, AIR 1971 SC 752, this Court held that it is not permissible to hold an enquiry on a vague charge as the same does not give a clear picture to the delinquent to make an effective defence because he may not be aware as what is the allegation against him and what kind of defence he can put in rebuttal thereof. This Court observed as under:(SCC p. 553, para 5)

"5.....The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has to be stated. This rule embodies a principle which is one of the specific contents of a reasonable or and definitely what the allegations are on which the charges preferred against him are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him."

33. In a case where the charge-sheet is accompanied with the statement of facts and the allegation may not be specific in charge- sheet but may be crystal clear from the statement of charges, in such a situation as both constitute the same document, it may not be held that as the charge was not specific, definite and clear, the enquiry stood vitiated. (Vide State of Andhra Pradesh vs. S. Sree Rama Rao, AIR 1963 SC 1723). Thus, where a delinquent is served a charge-sheet without giving specific and definite charge and no statement of allegation is served along with the charge- sheet, the enquiry stands vitiated as having been conducted in violation of the principles of natural justice.

34. In Sawai Singh v. State of Rajasthan, AIR 1986 SC 995, this Court held that even in a domestic enquiry, the charge must be clear, definite and specific as it would be difficult for any delinquent to meet the vague charges. Evidence adduced should not be perfunctory even if the delinquent does not take the defense or make a protest against that the charges are vague, that does not save the enquiry from being vitiated for the reason that there must be fair-play in action, particularly, in respect of an order involving adverse or penal consequences.

35. In view of the above, law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjunctures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.

18. From a perusal of the Rules, 1991 and the law laid down by the Apex Court, as noticed above, it is clear that for sustaining a departmental enquiry relating to imposition of a major penalty, the charge-sheet must contain not only the charges but also the statement of allegations by which those charges are to be proved. In the instant case, I find that the charge-sheet neither discloses the charges nor it contains the statement of allegations by which the charges are proposed to be proved. The charge-sheet of this case is only a statement of fact about the registration of a criminal case and the consequential imprisonment as well as suspension of the petitioner. It does not at all disclose the misconduct committed by the petitioner and the violation of any rule that may warrant imposition of major penalty. Such being the charge-sheet, the consequential proceedings cannot be sustained. The scope of the enquiry is determined by the charge-sheet. If the charge-sheet is vague, not only the relevant rules, but the principles of natural justice also, are violated. In such a scenario the entire enquiry proceeding stands vitiated. Thus, I am of the considered view that the entire disciplinary proceeding against the petitioner suffered from a fundamental flaw of being based on a charge sheet, which was vague, and not in conformity with the Rules, thereby rendering the entire disciplinary proceedings unsustainable in law.

19. Even otherwise, the criminal case, which was made basis of departmental proceedings, dealt with a conduct of the petitioner in private domain and not as a public servant, therefore, considering the circumstances in its totality, I am of the view that there was no justification whatsoever to hold a departmental enquiry. The disciplinary authority ought to have awaited decision of the criminal trial.

20. As far as the contention of the petitioner that punishment stood vitiated, as it was higher than that proposed in the show cause notice, is concerned, I am of the view that the said ground is not available to the petitioner in the facts of the present case. The rules do not provide for the disciplinary authority to propose any punishment. Under the Appendix I to the Rules, 1991, it is the enquiry officer, who may propose punishment. Since, the enquiry officer along with his report had proposed the punishment that was awarded, and that the said enquiry report was supplied to the petitioner, and in fact the petitioner, in his reply, had also represented against the proposed punishment that was ultimately imposed, there was substantial compliance of the principles of natural justice, as also the Rules, 1991. Even otherwise, the petitioner could not show any prejudice caused to him.

21. For the reasons aforementioned, the petition deserves to be allowed, and is hereby allowed. The orders dated 10.05.2011 (Annexure No.9 to the petition) and 02.07.2011 (Annexure No.11 to the petition) passed by the Commandant, 41st Battalion PAC, Ghaziabad and the Deputy Inspector General, PAC Meerut Division, Meerut respectively are hereby quashed and set aside. Since the petitioner has already retired from service, the respondents are directed to recalculate and pay to the petitioner the retiral dues, etc. that would have been payable to him had the orders impugned not been passed. The aforesaid exercise shall be completed within a period of two months from the date a certified copy of this order is produced before the authority concerned.

22. There is no order as to costs.

Order Date :- 20.04.2012

Sunil Kr Tiwari