Punjab-Haryana High Court
Asi/Lr Kuldeep Singh vs State Of Punjab And Others on 11 January, 2024
Neutral Citation No:=2024:PHHC:003696
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121 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-7604-2021
Date of Decision:11.01.2024
ASI/LR KULDEEP SINGH ......... Petitioner
Versus
STATE OF PUNJAB AND OTHERS ..... Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr. Inderjit Sharma, Advocate for the petitioner.
Mr. Inderpreet Singh Kang, AAG, Punjab.
****
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Articles
226/227 of the Constitution of India is seeking setting aside of order
dated 15.03.2021 (Annexure P-1) whereby DGP, Punjab has ordered to
dismiss the petitioner from service.
2. The petitioner, on 20.02.1991, joined Punjab Police as
Constable. The petitioner was promoted from the post of Constable to
Head Constable and thereafter Assistant Sub Inspector. The petitioner, on
account of being absent from duty, three times was subjected to
punishment. The first punishment was awarded vide order dated
27.12.2001 passed by SSP, Tarn Taran whereby one year approved
service for increment was forfeited. The petitioner unsuccessfully
preferred appeal before DIG, Border, Range, Amritsar. The petitioner
second time vide order dated 27.09.2004 was subjected to punishment of
forfeiture of 2 years' approved service for increment. The said
punishment was reduced to 1 year forfeiture of service for increment vide
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order dated 22.08.2014 passed by IGP, Border Range, Amritsar. The
petitioner for the third time was subjected to punishment of forfeiture of 3
years' of approved service for increment vide order dated 11.10.2004
passed by SSP, Tarn Taran. The appeal filed against said order was
dismissed vide order dated 26.06.2009 passed by DIG, Border Range,
Amritsar.
3. The petitioner filed three revision-cum-mercy petitions
before Director General of Police, Punjab, Chandigarh against aforesaid
punishment orders. The respondent-DGP while deciding mercy petition
of the petitioner, issued show cause notice dated 22.10.2020 (Annexure
P-11) calling upon the petitioner to show cause as to why he should not
be dismissed from service. The notice was issued in terms of power
conferred by Rule 16.28 of Punjab Police Rules, 1934 (for short 'the
Rules'). The petitioner filed reply to show cause notice and respondent-
DGP ordered to dismiss the petitioner from service. The impugned order
dated 15.03.2021 was communicated by IGP on behalf of DGP.
4. Learned counsel for the petitioner submits that as per Rule
16.2 of the Rules, a Police Officer can be dismissed from service for
gravest act of misconduct. The petitioner was subjected to punishment on
account of absence from duty. The act of petitioner does not fall within
the ambit of gravest misconduct. The petitioner preferred revision-cum-
mercy petition before DGP who in terms of Rules 16.28 of the Rules,
dismissed the petitioner from service. Rule 16.28 of the Rules confers
power of review upon Inspector General/Deputy Inspector
General/Senior Superintendent of Police and said power is not conferred
upon DGP. The petitioner had filed revision-cum-mercy petition and
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while adjudicating said petition, it was not just and fair on the part of
DGP to exercise power of review under Rule 16.28 of the Rules.
5. Learned State Counsel submits that an employee can be
dismissed from service even for single act and in the case in hand, the
petitioner was subjected to punishment three times, thus, there was
repeated misconduct on the part of petitioner which compelled DGP to
dismiss him from service.
6. On being asked, learned State counsel expressed his inability
to controvert the fact that power under Rule 16.28 of the Rules has been
conferred upon IG/DIG/SSP whereas the impugned order has been
passed by DGP. He further failed to controvert the fact that DGP has
exercised power while adjudicating mercy petition of the petitioner.
7. I have heard the arguments of learned counsel for the
parties and with their able assistance perused the record.
8. The impugned order deserves to be set aside on more than
one count.
(i) The respondent-DGP has passed impugned order in
exercise of power conferred by Rule 16.28 of the Rules. Rule 16.28 of
Punjab Police Rules 1934 reads as:
"16.28 Powers to review proceedings. -(1) The inspector-
General, a Deputy Inspector-General, and a Superintendent
of Police may call for the records of awards made by their
Subordinates and confirm, enhance, modify or annul the
same, or make further investigation or direct such to be
made before passing orders. [The State Government may
also call for the records and review the awards made by the
Inspector General of Police, Punjab or by any other
authority subordinate to him.]
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(2) If an award of dismissal is annulled, the officer annulling
it shall state whether it is to be regarded as suspension
followed by reinstatement, or not. The order should also
state whether service previous to dismissal should count for
pension or not.
(3) In all cases in which officers purpose to enhance an
award they shall, before passing final orders, give the
defaulter concerned an opportunity of showing cause, either
personally or in writing, why his punishment should not be
enhanced."
From the perusal of above quoted rule, it is quite evident
that power of review under Rule 16.28 has been conferred upon
Inspector General/Deputy Inspector General/Senior Superintendent of
Police whereas impugned order has been passed by DGP. It is settled
proposition of law that an authority which is not empowered with a
specific power cannot exercise the said power. The DGP acting beyond
his jurisdiction has passed the impugned order. The said power can be
exercised by IG/DIG/SSP. It is apt to notice here that the impugned
order has been communicated by DIG though it has been passed by
DGP and this fact has been categorically noted in the impugned order.
For the sake of clarity the operative portion of the impugned order
reads as:
"2. ASI/L.R. Kuldeep Singh No.1010/Gurdaspur
(Old No.3023/Tarn Taran) has filed appeals against
above-stated orders before this Office which were
carefully perused and he was granted opportunity of
personal hearing. Previous service record of the
appellant was scrutinized and it has been found that
the applicant is habitual of remaining absent from
duty. The act and conduct of the applicant being
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responsible member of disciplined force and being
conversant of the rules, is absolutely condemnable
and punishable. Therefore, show cause notice dated
09.09.2020 for dismissal from service was issued to
the applicant by this Office and he was granted 10
days time to file written reply. He filed written reply
in this regard which was carefully perused but in the
explanation furnished by him, no such fact was
disclosed from which his innocence could be proved.
3. Keeping in view these facts, reviewing the above
order passed by SSP, Tarn Taran, under P.P.R.
16.28, Director General of Police, Punjab has
ordered to dismiss from service ASI/LR Kuldeep
Singh No.1010/Gurdaspur (Old 3023/Tarn Taran).
DIG/Administrator
For Director General of Police, Punjab
No. 3533/E-2 (5) Chandigarh Dated 15.03.2021"
A Coordinate Bench of this Court in Rajpal Vs. State of
Haryana and others, RSA No. 3150 of 2001 has held that DGP cannot
exercise power of review in term of Rule 16.28 of the Rules. The relevant
extracts of the judgment reads as:
"There is some weight in the arguments of both the
learned counsel. Though the argument of the appellant
to the effect that he is innocent cannot be accepted yet
the Court can also not turn a blind eye to the fact
which are otherwise not disputed. I cannot also be
unmindful of the fact that no power of review under
Rule 16.28 has been conferred upon the DGP and
under that Rule power is restricted either to IG or the
State Government. Learned DAG has argued that
once the appellant had himself filed revision to the
DGP the exercise of power of review under Rule 16.28
cannot be objected. I regret my inability to favour this
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argument. In the circumstances of this case, the DGP
could best have referred the matter for review to the
competent IGP or the State Government but could not
pass an order himself. Consequently, I have no
hesitation in setting aside the order passed in the
revision petition. Now the issue which remains is with
regard to the relief which can be granted to the
appellant."
(ii) The respondent has passed order of dismissal. A Police
Officer may be dismissed in terms of Rule 16.2 of the Rules. The said
rule specifically provides that a Police Officer may be dismissed for
gravest act of misconduct or as the cumulative effect of continued
misconduct proving incorrigibility and complete unfitness for police
service. Rule 16.2 of the Punjab Police Rules reads as:
"16 .2. Dismissal-(1) Dismissal shall be awarded only for
the gravest acts of misconduct or as the cumulative effect of
continued misconduct proving incorrigibility and complete
unfitness for police service. In making such an award regard
shall be had to the length of service of the offender and his
claim to pension.
(2) If the conduct of an enrolled police officer leads to his
conviction on a criminal charge and he is sentenced to
imprisonment, he shall be dismissed:
Provided that a punishing authority may, in an exceptional
case involving manifestly extenuating circumstances for
reasons to be recorded and with the prior approval of the
next higher authority impose any punishment other than that
of dismissal:
Provided further that in case the conviction of an enrolled
police officer is set aside in appeal or revision, the officer
empowered to appoint him shall review his case keeping in
view the instructions issued by the Government from time
to time in this behalf.
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(3) When a police officer is convicted judicially and
dismissed or dismissed as a result of a departmental enquiry,
in consequence of corrupt practices, the conviction and
dismissal and its cause shall be published in the Police
Gazette. In other cases of dismissal when it is desired to
ensure that the officer dismissed shall not be re-employed
elsewhere, a full descriptive roll, with particulars of the
punishments, shall be sent for publication in the Police
Gazette."
From the perusal of above quoted rule, it is quite evident
that a Police Officer can be dismissed either for gravest act of
misconduct or as the cumulative effect of continued misconduct
proving incorrigibility and complete unfitness for police service.
From the perusal of impugned order, it is quite evident that
respondent has not even cared to point out whether petitioner has been
dismissed for gravest act of misconduct or because of cumulative
effect of continued misconduct. The respondent in the impugned order
has recorded facts but has not recorded any finding in support of his
harsh order of dismissal. The respondent was duty bound to comply
with mandate of Rule 16.2 of the Rules. It was duty of the respondent
to find out whether the continued misconduct of the petitioner is
proving incorrigibile and complete unfitness for police force but there
is no such finding. The petitioner was in service for more than 30
years. The respondent was further duty bound to consider length of
service as well as claim of the petitioner with regard to pension. The
respondent has not complied with even a single requisite of Rule 16.2
of the Rules and has mechanically passed impugned order. Thus, the
impugned order deserves to be set aside on the ground of non-
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compliance of mandate of Rule 16.2 of the Rules.
(iii) The petitioner filed three mercy petitions against
punishment orders. The DGP while considering mercy petitions of the
petitioner issued show cause notice calling upon him to show cause as
to why he should not be dismissed from service. It is not a case of the
respondent that an independent proceeding was initiated against the
petitioner in exercise of power conferred by Rule 16.28 of the Rules.
The petitioner prior to filing revision-cum-mercy petition had filed
appeals which were adjudicated by DIG/IGP. The respondent-DGP by
impugned order has not only set aside orders of adjudicating authority
but also appellate authority. The petitioner preferred mercy petition
and while adjudicating said petition, the respondent exercised power of
review and ordered to dismiss the petitioner from service. This Court
does not find act of respondent just, fair and right in the eye of law as
well as equity. The impugned order is grossly dis-proportionate to
punishment awarded by adjudicating authority. The procedure adopted
by respondent seems to be unknown to law.
9. In the wake of above facts and findings, the present
petition deserves to be allowed and accordingly allowed. The
impugned order dated 15.03.2021 (Annexure P-1) is hereby set aside.
10. Before parting with this judgment, this Court would hasten
to add that Courts neither can legislate nor can ask the legislature to
legislate in a particular manner, however, Courts from their experience,
gained while dealing with same set of cases, can suggest. Accordingly,
the State, in the light of prevailing situation is suggested to re-examine
Chapter XVI (Punishment) of Punjab Police Rules, 1934. In the said
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Chapter, no post above the rank of IGP has been noticed. For all
disciplinary and punishment purposes, IGP has been considered as
highest authority whereas at present DGP is highest authority.
The Police Officers after dismissal of appeal by IGP are
filing revision-cum-mercy petition before DGP which is not
contemplated by rules. As per Rules 16.32 of the Rules, no revision lies
against the order of IGP and an aggrieved person may submit mercy or
review petition before the same authority i.e. IGP.
As per Rule 16.28, IGP/DIG/SSP can review orders of his
subordinate. Power of review is not bestowed on officers senior to
Inspector General. Normally, power of review is conferred upon the same
authority whereas under Rule 16.28 power of review has been conferred
upon an officer senior to officer passing the order. The rule is silent about
review of appellate order, thus, the Police Authorities are reviewing even
appellate orders. This aspect needs to be clarified.
As per Rule 16.3 read with proviso to Rule 16.2, authorities
are supposed to re-consider departmental punishment, if criminal
proceedings are dropped. Proviso to Rule 16.2 (2) as well as Rule 16.3
needs to be re-considered because acquittal of a Police Officer in criminal
proceedings makes entire exercise of departmental action futile. This
Court has already dilated this aspect in CWP No.15636 of 2022.
( JAGMOHAN BANSAL )
JUDGE
11.01.2024
Ali
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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