Punjab-Haryana High Court
State Of Haryana And Others vs Dharam Singh No 289/Ftc Bwn Since ... on 9 April, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:048181
RSA-3959-2019 (O&M) -1- 2024:PHHC:048181
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
202 RSA-3959-2019 (O&M)
Date of Decision :09.04.2024
State of Haryana and others ...Appellants
Versus
Dharam Singh ....Respondent
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Ms. Vibha Tewari, AAG, Haryana.
Mr. Vijay Kumar Jindal, Senior Advocate with
Mr. Vrishank Suri, Advocate fot the respondent.
***
Harsimran Singh Sethi, J. (Oral)
1. In the present regular second appeal, challenge is to judgment
and decree of the Courts below by which, the suit filed by the respondent-
plaintiff challenging the punishment orders dated 07.06.2008 as well as
dated 04.02.1010 passed by the respondents, has been allowed.
2. Certain facts need to be noticed for the correct appreciation of
the issue in hand.
3. Respondent-plaintiff was recruited as Constable in the Haryana
Police on 29.09.1976 and, thereafter, he was promoted as Head Constable in
the year 2001 and thereafter as EASI on 31.06.2007. While respondent-
plaintiff was working as EASI, an FIR No.42 dated 03.03.2007 was
registered against him under the Immoral Traffic Prevention Act, 1956. In
the meantime, even the disciplinary proceedings were initiated against the
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respondent-plaintiff. After the respondent-plaintiff was held guilty of the
allegations alleged in the departmental proceedings, an order dated
07.06.2007 was passed by the competent authority dismissing the
respondent-plaintiff from service. Against the said order of dismissal,
respondent-plaintiff preferred an appeal, which appeal was also dismissed
and ultimately in revision petition filed by the respondent-plaintiff, vide
order dated 07.06.2008, punishment of dismissal from service was modified
to that of stoppage of five increments with permanent effect.
4. Thereafter, keeping in view the service record of the
respondent-plaintiff, vide show cause dated 04.12.2009, respondent-
department decided to prematurely retire the petitioner from service after
giving him three months notice. On completion of period of three months of
notice, respondent-plaintiff stood compulsorily retired from service vide
order dated 04.02.2010.
5. After the compulsory retirement of the respondent-plaintiff, an
FIR No.42 dated 03.03.2007 came to be decided and respondent-plaintiff
was acquitted of the allegations alleged against him by the competent Court
of law and, thereafter, the respondent-plaintiff claimed the benefit of
reinstatement in service on the ground that once, he has been acquitted of
the allegations by the competent Court, the findings recorded on the same
allegations in the departmental proceedings looses its significance hence, he
is entitled to be reinstated in service so as to continue in service upto the age
of 58 years.
6. As the said benefit of reinstatement in service has not been
given to the respondent-plaintiff, he filed a civil suit challenging the order
dated 07.06.2008 by which, punishment of stoppage of five increments with
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permanent effect was imposed as well as order dated 04.02.2010 by which
respondent-plaintiff was prematurely retired from service.
7. Keeping in view the evidence which had come on record,
learned trial Court vide judgment and decree dated 06.02.2015 allowed the
suit filed by the respondent-plaintiff and held that the punishmsent orders
under challenge as bad and directed the respondent-department to allow the
petitioner to continue in service till he attained the age of supernnuation.
8. Feeling aggrieved against the said judgment and decree of the
trial Court, appellant-State had filed an appeal which was also dismissed by
the lower appellate Court vide judgment and decree dated 29.04.2019 hence,
the present regular second appeal.
9. Learned counsel for the appellant-State argues that judgment
and decree of the Courts below are perverse to the facts and evidence which
had come on record and, hence, are liable to be set aside.
10. Learned counsel for the appellant-State submits that civil suit
was filed by the respondent-plaintiff on 24.11.2011 challenging the order
dated 07.06.2008 passed by the respondent-department, which was beyond
limitation hence, even without considering the said aspect, benefit has been
granted to the respondent-plaintiff, which amounts to perverse findings by
the trial Court and even the learned Appellate Court had failed to appreciate
the said fact while dismissing the appeal filed by the appellant-State.
11. Learned counsel for the appellant-State further argues that once,
in the departmental proceeding the allegations were proved and punishment
has been imposed, which punishment attained finality, subsequent acquittal
of the respondent-plaintiff in the criminal proceedings cannot render the
said departmental proceedings bad as both departmental and criminal
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proceedings stand on different footing and different nature of evidence is
required to prove the allegations in both the proceedings hence, merely that
respondent-plaintiff was acquitted in the criminal proceedings of the
allegations alleged against him will not render the departmental proceedings
as well as subsequent opinion of the department to retire the respondent-
plaintiff from service as bad especially, when while acquitting the
respondent-plaintiff, benefit of doubt was extended to him by the criminal
Court. Hence, the judgment and decree passed by the Courts below,
wherein the Courts below have failed to consider the said aspect are liable to
be set aside.
12. Learned Senior counsel appearing for the respondent-plaintiff
submits that once, the allegations in the departmental proceedings as well as
in criminal proceedings were same, on being discharged by the competent
Court of law in a criminal proceedings, the findings recorded in the
departmental proceedings so as to prove the allegations alleged against the
respondent-plaintiff looses its significance hence, the said aspect has rightly
been interpreted by the Courts below so as to grant the relief to the
respondent-plaintiff.
13. Learned senior counsel for the respondent-plaintiff further
submits that qua the argument that order dated 07.06.2008 which has been
set aside by the trial Court, has been set aside without considering the issue
of limitation, the said issue was never raised before the trial Court hence, the
same cannot be raised by the appellant-State in the present regular second
appeal.
14. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
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15. Last argument raised is being dealt first as to whether the suit
was within limitation qua the challenge to the order dated 07.06.2008 or not.
16. It is a conceded fact that the civil suit was filed by the
respondent-plaintiff on 24.11.2011 when the limitation to challenge the
punishment order dated 07.06.2008 had already been expired. The Courts
are to apply its mind, even if, the objection qua the limitation had not been
raised. Section 3 of the Limitation Act, 1963 is very clear that the Courts
have power to decide the issue of limitation keeping in view the evidence
and facts which have come on record.
17. Learned senior counsel for the respondent-plaintiff has not
been able to show that the order dated 07.06.2008 could have been
challenged while filing of suit on 24.11.2011, which was beyond the period
of limitation of three years.
18. As per the judgment of the Hon'ble Supreme Court of India in
Civil Appeal No.1852-1989 with Civil Appeal No.4772-1989, titled as,
State of Punjab and others vs. Gurdev Singh and Ashok Kumar, decided
on 21.08.1991, even void orders are to be challenged within a period of
three years hence, the Courts below have allowed the claim qua order dated
07.06.2008 without examining the permissibility of the said order being
challenged in the suit filed hence, grant of relief in respect of the order
dated 07.06.2008 is without noticing the issue of limitation and concededly
the challenge to the order dated 07.06.2008 was beyond limitation provided
under law hence, the judgment and decree of the Courts below are perverse
and cannot sustain qua the grant of relief qua order dated 07.06.2008 by
which, five increments of the respondent-plaintiff were stopped with
permanent effect.
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19. Next question which arises is as to whether even after acquittal
of the respondent-plaintiff in the criminal proceedings, punishment orders
which have been passed in the departmental proceedings prior to the said
acquittal during the course of service period of respondent-plaintiff as well
as the order of premature retirement will loose its significance merely on
the ground that the respondent-plaintiff got acquitted by giving him benefit
of doubt in the criminal proceedings in respect of FIR No.42 dated
03.03.2007.
20. It is a settled principle of law that departmental proceedings and
criminal proceedings stand on different footing and even the evidence
required to prove the allegations alleged in departmental proceedings is
entirely different as compared to proving of allegation in criminal
proceedings, which is beyond reasonable doubt. It is a settled principle of
law settled by the Hon'ble Supreme Court of India that even after acquittal
in criminal case, the department has right to initiate departmental
proceedings on same allegations. Reliance is being placed on the judgment
of the Hon'ble Supreme Court of India in Civil Appeal Nos.1763-1764-
2022, titled as State of Karnataka and another vs. Umesh, decided on
22.03.2022. Relevant paragraph of the judgment is as under:-
"13 The principles which govern a disciplinary enquiry
are distinct from those which apply to a criminal trial. In a
prosecution for an offence punishable under the criminal
law, the burden lies on the prosecution to establish the
ingredients of the offence beyond reasonable doubt. The
accused is entitled to a presumption of innocence. The
purpose of a disciplinary proceeding by an employer is to
enquire into an allegation of misconduct by an employee
which results in a violation of the service rules governing
the relationship of employment. Unlike a criminal
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prosecution where the charge has to be established beyond
reasonable doubt, in a disciplinary proceeding, a charge of
misconduct has to be established on a preponderance of
probabilities. The rules of evidence which apply to a
criminal trial are distinct from those which govern a
disciplinary enquiry. The acquittal of the accused in a
criminal case does not debar the employer from
proceeding in the exercise of disciplinary jurisdiction.
21. In case, even after the acquittal in the criminal proceedings,
department has power to initiate the departmental proceedings, then
argument of the learned senior counsel for the respondent-plaintiff that after
the acquittal in the criminal proceedings, the departmental proceedings
already held looses its significance, is contrary to the settled principle of law
cited hereinbefore.
22. Further, order of compulsorily retirement of the respondent-
plaintiff dated 04.12.2009 was by giving three months notice and further the
said order has never been challenged by the respondent-plaintiff and only
the relieving order dated 04.02.2010 in pursuance to the said order dated
04.12.2009 has been challenged. Even otherwise, the domain to retire the
employee keeping in view his/her service record is of the department. Once,
the allegations which were alleged against the respondent-plaintiff reflected
upon his morale and the same were proved in the departmental proceedings
and punishment of compulsory retirement was imposed by the punishing
authority of the department as department was of the view that respondent-
plaintiff should not have been retained in service beyond the age of 55
years, the Court cannot sit as a appellate authority over the decision of the
department. It is only in the rarest of rare case where the action taken by the
department to retire the employee is totally perverse to the service record
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that the Court can interference with the decision of the punishing authority.
23. In the present case, respondent-plaintiff has been punished qua
the allegations which reflected upon his morale hence, interference by the
Courts below qua the order of compulsorily retiring the respondent-plaintiff
from service was beyond their jurisdiction in the facts and circumstances of
the present case.
24. Keeping in view the facts and circumstances recorded
hereinbefore, coupled with the settled principle of law cited hereinbefore,
Judgment and decree of the Courts below are perverse to the evidence and
facts, which had already come on record hence, present regular second
appeal is allowed, Judgment and decree of the Courts below are set aside
and the suit filed by the respondent-plaintiff is dismissed.
25. Civil miscellaneous application pending if any, is also disposed
of.
April 09, 2024 (HARSIMRAN SINGH SETHI)
aarti JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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