Jai Bhagwan vs State Of Haryana And Ors
2022 Latest Caselaw 8387 P&H

221.
       IN THE HIGH COURT OF PUNJAB & HARYANA AT
                    CHANDIGARH

                                CWP-17596-2017
                                Date of Decision: 03.08.2022

JAI BHAGWAN                                               .... Petitioner


                                Versus


STATE OF HARYANA AND ORS                                  .... Respondents


CORAM: HON'BLE MS. JUSTICE JAISHREE THAKUR


Present:-   Mr. Sandeep Kumar Yadav, Advocate,
            for the petitioner.

            Mr. Tapan Kumar, DAG, Haryana.
                            ----

JAISHREE THAKUR.J (Oral)

The petitioner herein has approached this Court under Article

226/227 of the Constitution of India seeking to challenge the action of the

respondent State in discharging him as a Constable who was appointed under

the ESM BC-B category by invoking Rule 12.18(3)(e) of the Punjab Police

Rules, 1934 (for short, 1934 Rules), as applicable to the State of Haryana.

In brief, the facts as set out, are that the petitioner, who was

earlier working in the Indian Army since 21.08.2000 obtained premature

retirement and, thereafter applied under advertisement No.8 of 2015 for

appointment of Male Ex-Serviceman Constable (General Duty). The

petitioner was selected under the said quota and joined on 24.11.2016. He

thereafter got his medical examination done and was sent for training.

However, on a verification report being furnished to the department by S.P.

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Mohindergarh, it was informed that the petitioner had been involved in an

FIR No.93, dated 25.07.2008, under Sections 304, 34 IPC, Police Station

GRP, Rewari, but was acquitted by the trial Court on 13.05.2009. Based on

the said verification report, the petitioner herein was discharged under the

aforesaid Rule. His discharge was challenged by the petitioner in appeal

before the Director General of Police, Haryana, who dismissed the appeal

without taking note of any of the contentions raised thereunder.

Learned counsel appearing on behalf of the petitioner herein

would contend that the petitioner being meritorious was selected on his own

merit and was discharged by invoking Rule 12.18(3)(e) of 1934 Rules, which

is not applicable to his case. It is submitted that the petitioner though

nominated as an accused under the aforesaid FIR was acquitted by the trial

Court while taking into consideration that the prosecution had failed to bring

any evidence against the petitioner and, therefore, once he stands acquitted,

the action of the respondents in discharging him would wholly be unjustified.

It is further submitted that Rule 12.18(3)(e) of 1934 Rules will not be

applicable in his case since he has not been acquitted on any of the technical

grounds that any of the material prosecution witnesses had either been killed

or have died or remained untraced or turned hostile or won over, but only on

account of lack of evidence as produced by the prosecution itself. It is further

submitted that the reading of the said Rule does not even mention an offence

under Section 304 IPC and, therefore, in the totality of the said Rule, the

same could not have been invoked against him.

On the other hand, learned State counsel would argue that the

petitioner herein though acquitted prior to his submitting application form,

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but he failed to mention the details of the FIR and, therefore, there is non-

disclosure, which is sufficient reason to deny him appointment. It is also

argued that merely because Section 304 IPC does not find mention in Rule

12.18(3)(e) of 1934 Rules, it cannot be said that the said Rule would not be

applicable since the offence under Section 304 IPC would entail a

punishment between 10 years to life and, therefore, would be covered under

the definition of a "heinous crime". The Rule only gives an example and is

not exhaustive. Learned counsel for the State would thus support the orders

so passed by contending that there was total non-disclosure by the petitioner

herein in his verification-cum-attestation form regarding any criminal

proceedings he had been involved in or his arrest thereunder.

I have heard learned counsel for the petitioner as well as learned

State counsel and with their assistance, gone through the pleadings of the

case as well as the Rule, relied upon.

The facts herein are not in dispute. It is admitted that the

petitioner was nominated as an accused under FIR No.93, dated 25.07.2008,

under Sections 304, 34 IPC, but stood acquitted by giving him a benefit of

doubt. A reading of said judgment which is annexed as Annexure P-10

would reflect that the prosecution had failed to bring sufficient evidence on

the record to connect the petitioner herein with the crime accused of. The

Rule, as quoted in the letter of discharge, would clearly not be applicable

since in the instant case neither the star/material prosecution witness have

been killed or have died or remained untraced or turned hostile or won over.

If that had been the situation, the State would have been justified in invoking

the said Rule while discharging the petitioner herein. Consequently, finding

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that the said Rule, as invoked against the petitioner, is not applicable, this

Court has no hesitation in setting aside the impugned order, leaving it open to

the State to pass fresh orders if so desired.

The instant petition is allowed. The impugned order dated

02.03.2017, Annexure P-7, passed by respondent No.4 is hereby set aside

leaving it open to the respondent-State to pass fresh orders in accordance

with law within a period of one month from the receipt of copy of this order.

As far as the argument raised that the Director General of Police

has not passed a speaking order, this Court finds that there is no provision

under the said Rules to file an appeal against an order of discharge and,

therefore, no opinion has been given on any order passed by the DGP.

(JAISHREE THAKUR) JUDGE 03.08.2022 sanjeev Whether speaking/reasoned: Yes/No Whether Reportable: Yes/No

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