Punjab-Haryana High Court
Ranveer @ Ranbir vs State Of Haryana And Others on 6 November, 2023
Neutral Citation No:=2023:PHHC:140840
CWP-23913-2023 [1] 2023:PHHC:140840
118
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-23913-2023
Date of decision: 06.11.2023
Ranveer @ Ranbir
...Petitioner
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Randhir S. Hooda, Advocate for the petitioner.
Ms. Rajni Gupta, Addl. A.G., Haryana
for the respondents.
****
VIKAS BAHL, J. (ORAL)
1. This is a Civil Writ Petition filed under Article 226/227 of the
Constitution of India for issuance of a writ in the nature of certiorari
calling for the records of the respondents regarding the charge dated
03.01.2022 whereby the departmental inquiry was initiated against the
petitioner (Annexure P-1), charge sheet dated 02.08.2023 (Annexure P-2),
departmental inquiry and report thereof dated 04.09.2023 (Annexure P-3)
and show cause notice dated 27.09.2023 (Annexure P-4) whereby
punishment of dismissal of service has been proposed to be passed against
the petitioner.
2. Brief facts of the present case are that the petitioner had joined
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as a Constable in the Haryana Police on 04.04.2003 and on 03.01.2022, he
received a letter containing details of the charges against him which has
been annexed as Annexure P-1 with the petition. A perusal of the same
would show that one Shakir had made a complaint to the State Vigilance
Bureau alleging illegal demand of money under the garb of FIR
No.329/2020 registered at Police Station Hathin and the
complainant/victim had produced a recording of telephonic conversation
between the petitioner and complainant/victim and on the basis of same,
FIR No.13 dated 24.11.2021 was registered against the petitioner under
Section 7 of the Prevention of Corruption Act, 1988 (hereinafter to be
referred as "the 1988 Act") at Police Station State Vigilance Bureau,
Faridabad and thereafter, the petitioner was suspended and the
Superintendent of Police, vide order dated 29.11.2021, ordered
departmental enquiry to be initiated against the petitioner after complying
with the due procedure.
3. It is the case of the petitioner that thereafter, charge sheet was
issued by the Enquiry Officer, Deputy Superintendent of Police, Palwal on
02.08.2023 and the departmental enquiry was concluded on 04.09.2023
and the report of the Enquiry Officer, Deputy Superintendent of Police,
Palwal dated 04.09.2023 has been annexed as Annexure P-3 with the
present writ petition. A perusal of the said report would show that the reply
of the petitioner was considered and the statements of several witnesses
were recorded and it was found that in the year 2020, when the petitioner
was posted as Investigating Officer, in FIR No.329 dated 23.10.2020
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under Sections 148/149/323/506 of IPC, Police Station Hathin, he
demanded money from Shakir for deleting six persons from FIR
No.329/2020 and written complaint with respect to the same was given by
Shakir and there was a recording of demand of Rs.25,000/- from Shakir by
the petitioner and an FIR No.13 dated 24.11.2021 was registered against
the petitioner under Section 7 of the 1988 Act and it was further observed
that the petitioner had committed gross carelessness and indiscipline by
demanding bribe and by diminishing the image of Police in the eyes of
general public and charges against the petitioner were proved.
Subsequently, a show cause notice dated 27.09.2023 was issued to the
petitioner by the Superintendent of Police, Palwal by observing that after
considering the departmental enquiry report and relevant documents, the
Superintendent of Police was prima facie in agreement with the findings of
the Enquiry Officer and was provisionally of the opinion as to why the
punishment of dismissal from service be not inflicted upon the petitioner
and an opportunity was given to the petitioner to file reply within a period
of 7 days from the receipt of the said communication and it was further
stated that if no such reply is filed within the stipulated time then it will be
presumed that the petitioner has nothing to say in this regard and final
order as proposed would be passed accordingly. Liberty was granted to the
petitioner to appear before the Superintendent of Police, Palwal on any
working day for personal hearing along with written reply. Learned
counsel for the petitioner has fairly submitted that after the filing of the
present writ petition, he had filed a reply to the said notice.
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4. Learned State Counsel has pointed out that vide order dated
20.10.2023, the Superintendent of Police, Palwal, after examining the
findings of the Enquiry Officer, all the relevant records to the enquiry and
all the other factors, had passed the order of punishment of dismissal from
service upon the petitioner and liberty was granted to the petitioner to file
an appeal, if any, against the said order, before the Appellate Authority
i.e., the Inspector General of Police, South Range, Rewari. A copy of the
said order has been handed over to the Court which is taken on record and
marked as Mark 'A'. The said order is not the subject matter of challenge
before this Court.
5. It would be relevant to note that after the issuance of letter-
cum-details of charges dated 03.01.2022 (Annexure P-1), the petitioner
had filed a writ petition bearing No.CWP-28959-2022 (although, the
number of the writ petition has been wrongly mentioned as CWP-29859-
2022 in para 27 of the writ petition and the order passed in the said writ
petition has not been annexed with the present petition) which was drafted
on 12.12.2022 and the same had come up for hearing before the
Coordinate Bench of this Court on 15.12.2022 on which date, the
following order was passed:-
"Learned counsel for the petitioner prays for time to
apprise the Court as to whether the petitioner has filed a reply
to the impugned chargesheet.
Adjourned to 20.12.2022.
15.12.2022"
6. Thereafter, on 20.12.2022, the Coordinate Bench of this Court
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was pleased to pass the following order:-
"Learned counsel for the petitioner seeks unconditional
withdrawal of the present petition.
Dismissed.
December 20, 2022"
7. In the said writ petition which was filed by the petitioner prior
to the filing of the present writ petition, prayer was made for restraining
the respondents from continuing with the present departmental enquiry
during the pendency of the criminal trial in case FIR No.13 dated
24.11.2021 under Section 7 of the 1988 Act and thus, the said petition also
emanates from the same department proceedings as the present writ
petition.
8. Learned counsel for the petitioner has submitted that the
petitioner has filed the present writ petition by raising an additional ground
to the effect that the initiation of the proceedings against the petitioner is in
violation of Rule 16.38 of Punjab Police Rules, 1934 (hereinafter referred
to as the "1934 Rules') as applicable to the State of Haryana. It is further
submitted that the said plea was not raised in the previous writ petition and
thus, the subsequent petition raising the additional plea is maintainable. It
is contended that subsequent to the order of dismissal passed by the
Coordinate Bench on 20.12.2022, subsequent charge sheet dated
02.08.2023, report dated 04.09.2023 and show cause notice dated
27.09.2023 for dismissal have been issued to the petitioner and the same
would give a recurring cause of action to the petitioner to raise a plea
which was not raised in the previous writ petition.
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9. This Court has heard learned counsel for the petitioner and
finds no merit in the plea raised by the learned counsel for the petitioner
for the reasons stated hereinunder.
10. The Hon'ble Supreme Court of India in case titled as "Devilal
Modi Vs. Sales Tax Officer, Ratlam and others" reported as 1965 AIR
(Supreme Court) 1150, had observed that the principle of constructive res
judicata is applicable to writ petitions also and in case the said principle is
not applied then a person could file as many writ petitions as he likes and
raise one or two pleas every time and the same is opposed to
considerations of public policy on which the principle of res judicata is
based and would result into harassment and hardship of the opponent. It
was held that one of the most important considerations of public policy
was that the decisions pronounced by the Courts of competent jurisdiction
should be final, unless they are modified or reversed by appellate
authorities and that no one should be made to face the same kind of
litigation twice and that if a plea could have been raised by a party in a
proceeding between him and his opponent in the first instance, then he
would not be permitted to take the said plea against the same party in a
subsequent proceeding which emanates from the same cause of action.
Relevant portion of the said judgment is reproduced hereinbelow:-
"1 to 8. xxx xxx xxxx xxx But the question as to whether a
citizen should be allowed to challenge the validity of the same
order by successive petitions under Article 226, cannot be
answered merely in the light of the significance and
importance of the citizens'' fundamental rights. The general
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principle underlying the doctrine of Res judicata is ultimately
based on considerations of public policy. One important
consideration of public policy is that the decisions
pronounced by Courts of competent jurisdiction should be
final, unless they are modified or reversed by appellate
authorities; and the other principle is that no one should be
made to face the same kind of litigation twice over, because
such a process would be contrary to considerations of
fairplay and justice, vide Daryao v. State of U.P. 1962-1 SCR
574.
9. It may be conceded in favour of Mr. Trivedi that the rule of
constructive Res judicata which is pleaded against him in the
present appeal is in a sense of somewhat technical or
artificial rule prescribed by the Code of Civil Procedure. This
rule postulates that if a plea could have been taken by a party
in a proceeding between him and his opponent, he would not
be permitted to take that plea against the same party in a
subsequent proceeding which is based on the same cause of
action; but basically, even this view is founded on the same
consideration of public policy, because if the doctrine of
constructive Res judicata is not applied to writ proceedings,
it would be open to the party to take one proceeding after
another and urge new grounds every time, and that plainly
is inconsistent with considerations of public policy to which
we have just referred.
10 to 12 xxx xxx xxx xxx. Considerations of public policy and
the principle of the finality of judgments are important
constituents of the rule of law and they cannot be allowed to
be violated just because a citizen contends that his
fundamental rights have been contravened by an impugned
order and wants liberty to agitate the question about its
validity by filing one writ petition after another.
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13. xxx xxx xxx xxx At the hearing of this appeal, he has filed
another petition asking for leave from this Court to take some
more additional points and that shows that if constructive res
judicata is not applied to such proceedings a party can file
as many writ petitions as he likes and take one or two points
every time. That clearly is opposed to considerations of
public policy on which res judicata is based and would mean
harassment and hardship to the opponent. Besides, if such a
course is allowed to be adopted, the doctrine of finality of
judgments pronounced by this Court would also be
materially affected. We are, therefore, satisfied that the
second writ petition filed by the Appellant in the present case
is barred by constructive res judicata.
14. The result is, the appeal fails and is dismissed. There
would, however, be no order as to costs."
11. The Hon'ble Supreme Court of India in case titled as "Y.B.
Patil and others Vs. Y.L. Patil" reported as 1976(4) SCC 66, has further
held that the principle of res judicata can be invoked not only in separate
proceedings but can also get attracted in subsequent stages of the same
proceedings. Relevant portion of the said judgment is reproduced
hereinbelow:-
"1 to 4 xxx xxx xxx xxx. It is well settled that principles of res
judicata can be invoked not only in separate subsequent
proceedings, they also get attracted in subsequent stage of
the same proceedings. Once an order made in the course of a
proceeding becomes final, it would be finding at the
subsequent stage of that proceeding. Xxxx xxxx"
12. Hon'ble the Supreme Court of India in case titled as "State of
U.P. Vs. Nawab Hussain" reported as 1977(2) SCC 806, was further
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pleased to observe that the same set of facts could give rise to two or more
causes of action and in case a person is allowed to choose and pursue one
cause of action at one time and to reserve the other for subsequent
litigation, that would aggravate the burden of litigation and the Courts
have held the said course of action to be an abuse of process and have
thus, formulated the Principle which is referred to as constructive res
judicata. Relevant portion of the said judgment is reproduced
hereinbelow:-
"1 to 3 xxx xxx xxx.
4. But it may be that the same set of facts may give rise to
two or more causes of action. If in such a case a person is
allowed to choose and sue upon one cause of action at one
time and to reserve the other for subsequent litigation, that
would aggravate the burden of litigation. Courts have
therefore treated such a course of action as an abuse of its
process and Somervell L.J., has answered it as follows in
Greenhalgh v. -Mallard, (1947) 2 All England Reporter 255
at page 257:-
"I think that on the authorities to which I will refer it
would be accurate to say that res judicata for this
purpose is not confined to the issues which the court is
actually asked to decide, but that it covers issues or facts
which are so clearly part of the subject matter of the
litigation and so clearly could; have been raised that it
would be an abuse of the process of the court to allow a
new proceeding to be started in re- spect of them."
This is therefore another and an equally necessary
and efficacious aspect of the same principle, for it helps in
raising the bar of res judicata by suitably construing the
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general principle of subduing a cantankerous litigant. That
is why this other rule has .sometimes been referred to as
constructive res judicata which, in reality, is an aspect or
amplification of the general principle."
13. Applying the law laid down in the abovesaid judgments to the
present case would clearly show that the petitioner is barred by the
principle of constructive res judicata from filing the present writ petition
and from raising the plea with respect to the procedure being in violation
of Rule 16.38 of 1934 Rules. Although, the Rule which has been
reproduced in the writ petition is not the correct Rule and learned counsel
for the petitioner, during the course of arguments, has referred to the
correct Rule and the said correct Rule 16.38(1) as applicable to State of
Haryana is reproduced hereinbelow:-
"Rule 16.38 for Haryana
16.38. Criminal offences by police officers and strictures by
courts-Procedure regarding. (1) Where a preliminary enquiry
or investigation into a complaint alleging the commission by
an enrolled police officer of a criminal office in connection
with his official relations with the public, establishes a prima
facie case, a judicial prosecution shall normally follow.
Where however, the Superintendent of Police proposes to
proceed in the case departmentally, the concurrence of the
District Magistrate shall be obtained."
14. It is not in dispute that the plea with respect to the said Rule
16.38 to the effect that as per the case of the petitioner, the Superintendent
of Police has not taken concurrence of the District Magistrate before the
proceedings departmentally, was available to him on the date when the
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previous writ petition was drafted i.e., on 12.12.2022 and was taken up for
hearing on 15.12.2022 and was unconditionally withdrawn and dismissal
on 20.12.2022 since, the said plea was with respect to there being some
alleged illegality in the initiation of the proceedings and the proceedings
had admittedly been initiated by that date and even order dated 03.01.2022
(Annexure P-1) annexed and challenged in the present writ petition had
already been passed. Once, the petitioner had filed the previous writ
petition with respect to the same departmental enquiry and had sought stay
of the same, then, it was incumbent upon the petitioner to raise all the
pleas available to him at the relevant time i.e., on the date of filing of the
petition and the petitioner cannot be permitted to indulge in multiple
litigations to raise pleas which were already available to him before
dismissal/withdrawal of the previous writ petition by filing fresh writ
petitions. The argument of learned counsel for the petitioner, to the effect
that passing of the subsequent order would give a fresh cause of action to
the petitioner to raise the same plea which was available to him at the time
of filing of the previous writ petition, is completely misconceived and
unknown to law inasmuch as it has been repeatedly held by the Hon'ble
Supreme Court that the principle of constructive res judicata also applies
to subsequent stages of the same proceedings. Reference in this regard can
be made to the judgment of the Hon'ble Supreme Court in Y.B. Patil's
case (Supra), relevant portion of which is reproduced hereinabove.
Moreover, no law to the contrary has been cited on the said aspect by the
learned counsel for the petitioner.
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15. There are additional factors which need to be noticed. As
pointed out by learned State Counsel that the proceedings which are
sought to be challenged in the present writ petition have culminated into
passing of the final order dated 20.10.2023 (Mark 'A') dismissing the
petitioner from service has been passed and in the said order, it has been
mentioned that the petitioner has a right to file an appeal against the said
order before the Inspector General of Police, South Range, Rewari within
the time limit as prescribed as per the PPR Rule 16.38(1). The said order is
not subject matter of challenge in the present writ petition. Further, on a
specific query raised by this Court, learned counsel for the petitioner has
fairly submitted that plea regarding Rule 16.38 of 1934 Rules has not been
raised before the authorities. In the previous writ petition filed, time was
sought on behalf of the petitioner on 15.12.2022 to place on record the
reply to the impugned charge sheet and the same was not done rather, the
case was unconditionally withdrawn which resulted into dismissal of the
previous writ petition. The said reply, even now, has not been annexed
with the present petition. It would be relevant to note that Rule 16.38
which has been reproduced in the petition is not the relevant Rule
applicable to the State of Haryana and thus, even the averments which
have been made in para 9, are not in consonance with the Rule 16.38 for
Haryana which has been referred to by learned counsel for the petitioner
during the course of hearing. Pleadings are thus, not in conformity with the
arguments sought to be raised by learned counsel for the petitioner based
on Rule 16.38 as applicable to the State of Haryana. In para 27 of this writ
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petition, reference has been made to one writ petition bearing No.CWP-
29859-2022 (incorrectly mentioned) and in the said para, it was stated that
the same was for challenging the letter whereby the details of charges were
sent to the petitioner which was withdrawn on 20.12.2022. On 19.10.2023,
this Court was pleased to pass the following order:-
"A perusal of the paragraph 27 of the present writ
petition would show that the earlier writ petition filed by the
petitioner has been stated to be CWP-29859-2022, whereas,
the earlier petition number is CWP-28959- 2022, of which the
petitioner sought unconditional withdrawal of & the same
was dismissed on 20.12.2022.
Learned counsel for the petitioner prays for an
adjournment to assist the Court in the matter.
Adjourned to 06.11.2023.
Registry is directed to attach the file of CWP-28959-
2022, decided on 20.12.2022 with the present case."
16. In pursuance of the above said order, Registry has attached the
file of writ petition bearing No.CWP-28959-2022 which has been perused
by this Court and a perusal of the same would show that apart from the
other facts, although, learned counsel for the petitioner had sought
unconditional withdrawal but the petition was dismissed and not dismissed
as withdrawn as stated in para 27 of the petition.
17. For the reasons stated above, this Court finds no merit in the
present writ petition and thus, the same is accordingly dismissed.
06.11.2023 (VIKAS BAHL)
Pawan JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
Neutral Citation No:=2023:PHHC:140840
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