Reserved On:-01.08.2024 vs State Of Himachal Pradesh And Others
2024 Latest Caselaw 12410 HP

Himachal Pradesh High Court

Reserved On:-01.08.2024 vs State Of Himachal Pradesh And Others on 28 August, 2024

Author: Ajay Mohan Goel

Bench: Ajay Mohan Goel

                                                               2024:HHC:7606-DB


           IN THE HIGH COURT OF HIMACHAL PRADESH AT
                                 SHIMLA
                                        CWP No. 247 of 2023
                                        Reserved on:-01.08.2024




                                                            .
                                        Decided on 28.08. 2024





    Paras Ram
                                                               ...Petitioner
                             Versus





    State of Himachal Pradesh and others
                                                            ...Respondents
    Coram





    Hon'ble Mr. Justice Ajay Mohan Goel, Judge
    1
        Whether approved for reporting?
    For the petitioners:     Mr. K.D. Shreedhar, Senior Advocate,
                   r         with Ms. Sneh Bhimta, Advocate.

    For the respondents: Mr. Rajpal Thakur, Additional
                         Advocate General.


    Ajay Mohan Goel, Judge (Oral)

Brief facts necessary for the adjudication of the

present petition are that the petitioner joined the

Police Department as a Constable in the year 1984. He gained

promotions thereafter and was promoted to the post of Sub

Inspector on 22.04.2011. Upon his promotion as such, he was

posted in Police Station Brow, Kullu as Station House Officer. In

the year 2015, the petitioner was placed under suspension vide

letter dated 19.11.2015, on account of an alleged recovery of

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an unexplained amount of Rs.4,35,000/- from the petitioner.

2. A fact finding inquiry was also ordered by Additional

Superintendent of Police Kullu. Upon receipt of the inquiry

.

report, Additional Superintendent of Police recommended

initiation of disciplinary proceedings as well as criminal

proceedings against the petitioner. The copy of the preliminary

inquiry report dated 24.11.2015, is placed on record as

Annexure P-2. Copy of order dated 26.11.2015, in terms

whereof, departmental proceedings were initiated against the

petitioner is placed on record as Annexure P-3.

3. In the meanwhile, on the basis of a complaint filed

by Sub Divisional Police Officer Anni, District Kullu an FIR was

also registered against the petitioner on 21.12.2015, i.e.

FIR No.84 of 2015, under Sections 13(1) & 13(2) of the

Prevention of Corruption Act, 1988. A copy of FIR is placed on

record as Annexure P-4.

4. FIR No.84 of 2015 registered against the petitioner

was cancelled by the learned Special Judge, Kinnaur, Sessions

Division at Rampur vide order dated 28.02.2020, on the basis

of closure report filed by the CID investigation team led by

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Additional Superintendent of Police CID. A copy of the closure

report dated 19.09.2019, is appended with the petition as

Annexure P-12 and that of the order passed by the learned

.

Special Judge Kinnaur, Sessions Division at Rampur dated

28.02.2020 as Annexure P-13.

5. In the meanwhile, in the disciplinary proceedings,

which were initiated against the petitioner, vide order dated

21.03.2017 (Annexure P-11), punishment of forfeiture of future

three years' service with permanent effect for all purposes was

imposed upon the petitioner.

6. Feeling aggrieved, he filed an appeal. However, the

appeal was dismissed vide order dated 20.01.2021,

Annexure P-15, being time barred. Review filed against the

same also met the same fate. It is in these circumstances that

the petitioner is before this Court, primarily praying for the

following reliefs:-

1. "Issue a writ of certiorari for quashing the memo of charge sheet dated 19.12.2016 and consequentially all the proceedings initiated pursuant there to;(Annexure P-6).

2. Issue a writ of certiorari for quashing the adverse remarks in the ACR for the period of 01.04.2015 to 31.03.2016 recorded vide orders dated 31.08.2016 (Annexure P-5 (Colly) ) and

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40.06.2022 (Annexure P-21).

3. Issue a writ of certiorari for quashing the order dated 04.06.2022 (Annexure P-22) of respondent No.2 DGP whereby the penalty of forfeiture of three years' service imposed upon

.

the petitioner vide penalty order dated

21..03.2017 (Annexure P-11), appeal order dated 20.01.2021 (Annexure P-15) and review order dated 12.02.2021 (Annexure P-16) were

upheld.

4. Issue a writ of mandamus, order or direction commanding the respondents to promote the petitioner to the post of inspector with effect

from 18.03.2018 i.e. when the petitioner's juniors were promoted as such with all consequential benefits."

7. When this was listed on 13.05.2024, the following

order was passed:-

"Heard for some time. The petitioner, by way of this petition has challenged the

disciplinary proceedings that have been initiated against him and the orders passed thereupon by the Disciplinary Authority as well as the

Appellate and Revisional Authorities.

Learned counsel for the petitioner has

drawn the attention of the Court to the documents appended with the Writ petition as well as the averments made therein and

submitted that there is a gross violation of Rule 16.38 of the Punjab Police Rules, 1934 (as applicable to the State of Himachal Pradesh). She further argued that in reply to Para 18 (H) of the Writ petition, wherein reference to Rule 16.38 of the Punjab Police Rules has been given, the reply of the State is to the effect that record pertaining to the proceedings of Rule 16.38 of the Punjab Police Rules, has not been

2024:HHC:7606-DB

found.

This Court is of the considered view that as it has not been denied by the State that the Provisions of Rule 16.38 of the Punjab Police Rules, 1934 are applicable in the State of

.

Himachal Pradesh and further as the provisions

of this Rule have not been followed, in terms whereof, it is the District Magistrate, who after intimation received from the Superintendent of

Police on the basis of any complaint received by the Superintendent of Police as is contemplated in Rule 16.38 of the Punjab Police Rules, has to take a call how the matter has to be dealt with,

violation of this Rule in fact vitiates the entire proceedings.

Faced with the situation, learned Additional Advocate General submits that he

may be granted some time to ascertain this fact, as to whether provisions of Rule 16.38 of the

Punjab Police Rules, 1934 (as applicable to the State of Himachal Pradesh), were followed or not.

As prayed for, list on 27.05.2024."

8. Thereafter, on 01.08.2024, the following order was

passed:-

"Learned Additional Advocate General has handed over a copy of instructions, in terms whereof, the Court stands informed that

necessary permission as is required under Rule 16.38 of the Punjab Police Rules, as is applicable to the State of Himachal Pradesh, has not been found in the record relating to the Departmental Enquiry held against the petitioner. The instructions are ordered to be taken on record. A perusal of the reply that has been filed by the State to the main writ petition, this very stand has been taken in the reply with regard to

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para 18(H) of the same.

Arguments heard. Judgment reserved."

9. Learned Senior Counsel appearing for the petitioner

.

has argued that the departmental proceedings which were

initiated against the petitioner are per se vitiated and are liable

to be quashed and set aside on the short count that as the

procedure proscribed in Rule 16.38 of the Punjab Police Rules

1934, as is applicable to the State of Himachal Pradesh was

not followed in the present case, the entire subsequent

exercise undertaken by the Department against the petitioner is

bad in law.

10. On the other hand, learned Additional Advocate

General has supported the impugned orders. He argued that

the departmental proceedings have been held as per the rules.

Due process has been followed. Rule 16.38 being relied upon

by the petitioner is not attracted in the case and principles of

natural justice were adhered to.

11. Before proceeding further, I would like to refer at

this stage to Rule 16.38 of the Punjab Police Rules, as is

applicable to the State of Himachal Pradesh, the same reads as

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under:-

"16.38. Criminal offences by Police Officers and strictures by Courts-Procedure regarding:-

(1) 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] (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."

12. Thus, in terms of the provisions of the said Rule

immediately after a complaint is received by Superintendent of

Police which indicates the commission of a criminal offence in

connection with his official relation with the public by a Police

Officer, the District Magistrate shall decide whether the

investigation of the complaint shall be conducted by a Police

Officer or made over a selected Magistrate having 1st Class

power.

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13. The order, in terms whereof, the petitioner was

placed under suspension i.e. (Annexure P-1) and a copy of the

preliminary inquiry report dated 24.11.2015 (Annexure P-2)

.

coupled with order dated 27.11.2015 (Annexure P-3) and the

contents of the FIR, copy whereof is appended with the petition

as (Annexure P-4), demonstrate that the allegations against the

petitioner inter alia were that an amount of Rs.4,35,000/- which

was recovered from the petitioner, was earned by him through

corrupt practices, which amounted to an act of grave

misconduct, in-discipline and unbecoming of a good Police

Officer. As per the Department, said conduct of the petitioner

had tarnished the image of the Police Department in the eyes

of general public.

14. This Court is of the considered view that the

allegation which was so levelled against the petitioner,

obviously, was in connection with his official relation with the

public, because, a Police Officer allegedly could have indulged

into corrupt practices on account of his relation with the public

only.

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15. That being the case, the departmental Inquiry that

was suo motu initiated by the Department against the petitioner

per se was not sustainable in the eyes of law.

.

16. As per Rule 16.38 (supra), in such a situation, it

was incumbent upon the competent authority to send

immediate information of the incidence to the District Magistrate

and it was for the District Magistrate to decide whether the

investigation of the complaint was to be conducted by a Police

Officer or made over a selected Magistrate having 1st Class

power.

17. In the absence of the said procedure having been

followed, the entire act of holding the Disciplinary Inquiry which

has culminated into the imposition of punishment upon the

petitioner, as also the rejection of his appeal and review are per

se bad in law and liable to be quashed and set aside.

18. It is relevant to mention that in Para 18(H) of the

writ petition, there is a specific allegation that the departmental

proceedings have been carried out in violation of Rule 16.38 of

the Punjab Police Rules, which are applicable to the

respondent-Department and response thereto by the

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Department in the reply filed is as under:-

"That the reply with regard to the Para No.18H, it is submitted that record pertaining to proceeding of Rule 16.38 of Punjab Rule 1934

.

(As applicable in HP) has not been found in

the record file."

19. This also demonstrates that there is in fact an

admission on the part of the Department that there was indeed

violation of the provisions of Rule 16.38, as applicable to the

State of Himachal Pradesh.

20. Accordingly, in view of the above discussion, as this

Court has no hesitation in holding that the departmental Inquiry

that was conducted against the petitioner was per se bad, as

the same was undertaken in violation of the provisions of Rule

16.38 (supra) of the Punjab Police Rules, as are applicable to

the State of Himachal Pradesh, this writ is allowed. The

departmental proceedings as well as the order of dismissal,

rejection of appeal and review are hereby quashed and set

aside, as prayed for and the adverse remarks recorded in the

ACRs of the petitioner are also set aside with further direction

to the respondents to consider the case of the petitioner for

promotion as from the date when persons junior to him were

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promoted to the said post as per Rules, with all consequential

benefits.

21. Pending miscellaneous applications, if any, also

.

stand disposed of.

                                         (Ajay Mohan Goel)





                                              Judge

    28.08.2024
     (Vinod)


                   r        to