Punjab-Haryana High Court
Harjinder Singh vs State Of Pb. And Ors on 14 March, 2024
Neutral Citation No:=2024:PHHC:036846
CWP-10132-2006 (O&M) 1 2024:PHHC:036846
208
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-10132-2006 (O&M)
Date of Decision:14.03.2024
HARJINDER SINGH ......... Petitioner
Versus
STATE OF PB. AND ORS. ..... Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr. C.M. Munjal, Advocate
for the petitioner.
Mr. Aman Dhir, DAG, 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 16.06.2003 (Annexure P-5) whereby petitioner has been dismissed
from service.
2. The petitioner on 23.03.1993 was enrolled as Constable in
the Punjab Armed Police. He was deputed in the Security Wing as a
Driver. On 28.07.1995 while he was on duty as Driver his vehicle met
with an accident and an FIR No.78 dated 28.07.1995, under Sections 279
and 337 of IPC, 1860 and Section 185 of the Motor Vehicles Act, 1998
came to be registered against him. The petitioner was convicted vide
judgment dated 04.09.2000 passed by Judicial Magistrate 1st Class,
Chandigarh, however, he was released on probation under Probation of
1 of 13
Neutral Citation No:=2024:PHHC:036846
CWP-10132-2006 (O&M) 2 2024:PHHC:036846
Offenders Act, 1958. He filed an appeal before Appellate Court which
vide order dated 18.03.2005 disposed of the same with the observation
that offences under Sections 279 and 337 of IPC, 1860 and Section 185
of the Motor Vehicles Act, 1988 are not the offences involving moral
turpitude and extension of benefit under Probation of Offenders Act
would not incur any disqualification for the appellant/accused.
3. The respondent No.4-Commandant vide order dated
16.06.2003 (Annexure P-5) dismissed the petitioner from service. He
preferred an appeal before Appellate Authority against the order of
dismissal. The said appeal came to be dismissed vide order dated
24.09.2004 passed by respondent No.2- Inspector General of Police,
PAP, Jalandhar Cantt. He filed mercy cum revision petition before
Director General of Police who vide order dated 06.03.2006 dismissed
the same.
4. Mr. C.M. Munjal, Advocate submits that petitioner though
convicted but was not awarded sentence and he was released on
probation, thus, his case does not come in the teeth of Rule 16.2 of
Punjab Police Rules, 1934 (for short '1934 Rules'). An officer is liable to
be dismissed from service, if he is convicted and awarded sentence. The
petitioner was released on probation and Appellate Court has specifically
held that release on probation would not be disqualification.
5. Per contra, learned State counsel submits that petitioner was
a police officer and he was governed by 1934 Rules which are in the form
of a complete Code. Sub-Rule (2) of Rule 16.2 of 1934 Rules
categorically provides that if an officer is convicted, he is liable to be
dismissed. There is no discretion with the authorities to retain an officer
2 of 13
Neutral Citation No:=2024:PHHC:036846
CWP-10132-2006 (O&M) 3 2024:PHHC:036846
who has been convicted and sentenced to imprisonment on a criminal
charge. He further submits that petitioner was convicted by Trial Court
vide judgment dated 04.09.2000 and before passing the dismissal order
the disciplinary authority has taken into consideration the mandate of
Rule 16.2 (2) of 1934 Rules. He further submits that petitioner cannot be
reinstated on the basis of his release on probation. The petitioner was
member of Armed Police, therefore, he was bound to maintain discipline
and have good conduct.
6. I have heard the arguments of both sides and with the able
assistance of learned counsels have perused the record.
7. The conceded position emerging from the record is that
petitioner joined respondent-department as Constable. An FIR No.78
dated 28.07.1995, under Sections 279 and 337 of IPC, 1860 and Section
185 of the Motor Vehicles Act, 1998 came to be registered against him.
In the said FIR, vide judgment dated 04.09.2000, the petitioner was
convicted, however, extended benefit of probation. On conviction, he
was served with a show cause notice dated 03.12.2002 calling upon to
show as to why an action should not be taken against him under Rule
16.2 of 1934 Rules. Pursuant to reply filed by the petitioner,
Commandant 82 Battalion, PAP, Chandigarh vide order dated 16.06.2003
dismissed him from service by invoking rigour of Rule 16.2 (2) of 1934
Rules. He preferred an appeal against the order of dismissal which came
up for consideration before Deputy Inspector General of Police, PAP,
Chandigarh who vide order dated 22.01.2004 dismissed the same.
Petitioner against judgment of conviction, preferred criminal
appeal before Sessions Court which came up for consideration before
3 of 13
Neutral Citation No:=2024:PHHC:036846
CWP-10132-2006 (O&M) 4 2024:PHHC:036846
Additional Session Judge who vide order dated 18.03.2005 upheld the
order of Trial Court and specifically recorded that benefit of probation
under Probation of Offenders Act, would not incur any disqualification to
the petitioner. The relevant extracts of the judgment read as:
"The accused/appellant was ordered to be released on
probation on his undertaking to be of good behaviour for a
period of one year. There is no material whatsoever laid
before this Court to show that accused did not keep good
behaviour during that period which has since come to an end
and therefore nothing remains to be done on this aspect of
the accused. It is trite that offences under Sections 279 and
337 IPC and 185 Motor Vehicle Act are not the offences
involving mortal turpitude and as such, extension of benefit
under the Probation of Offenders Act to the accused would
not incur any disqualification for the accused/appellant, as
far as is lawfully permissible. The appeal is found without
merit and is ordered to be dismissed. Papers be consigned to
the records after due compilation."
8. The petitioner is claiming that his conduct was neither
gravest misconduct nor continued misconduct proving incorrigibility and
complete unfitness for police service, thus, he could not be dismissed
from service. The arguments of the petitioner need to be examined in the
light of Rule 16.2 of 1934 Rules, which is reproduced as below:-
"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
4 of 13
Neutral Citation No:=2024:PHHC:036846
CWP-10132-2006 (O&M) 5 2024:PHHC:036846
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.
(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."
9. The question of interpretation of Rule 16.2 of 1934 Rules
came up before the Apex Court in State of Punjab v. Ram Singh, (1992)
4 SCC 54 wherein it was held that an officer may be dismissed in two
situations i.e. on account of gravest misconduct or cumulative effect of
continued misconduct. A single act may constitute gravest misconduct.
The colour of gravest misconduct must be gathered from the
surroundings or attending circumstances. The relevant extracts of the said
judgment read as:
"7. Rule 16.2(1) consists of two parts. The first part is
referable to gravest acts of misconduct which entails
awarding an order of dismissal. Undoubtedly there is
distinction between gravest misconduct and grave
5 of 13
Neutral Citation No:=2024:PHHC:036846
CWP-10132-2006 (O&M) 6 2024:PHHC:036846
misconduct. Before awarding an order of dismissal it shall
be mandatory that dismissal order should be made only
when there are gravest acts of misconduct, since it impinges
upon the pensionary rights of the delinquent after putting
long length of service. As stated the first part relates to
gravest acts of misconduct. Under General Clauses Act
singular includes plural, "act" includes acts. The contention
that there must be plurality of acts of misconduct to award
dismissal is fastidious. The word "acts" would include
singular "act" as well. It is not the repetition of the acts
complained of but its quality, insidious effect and gravity of
situation that ensues from the offending 'act'. The colour of
the gravest act must be gathered from the surrounding or
attending circumstances. Take for instance the delinquent
who put in 29 years of continuous length of service and had
unblemished record; in thirtieth year he commits defalcation
of public money or fabricates false records to conceal
misappropriation. He only committed once. Does it mean
that he should not be inflicted with the punishment of
dismissal but be allowed to continue in service for that year
to enable him to get his full pension. The answer is obviously
no. Therefore, a single act of corruption is sufficient to
award an order of dismissal under the rule as gravest act of
misconduct.
8. The second part of the rule connotes the cumulative
effect of continued misconduct proving incorrigibility and
complete unfitness for police service and that the length of
service of the offender and his claim for pension should be
taken into account in an appropriate case. The contention
that both parts must be read together appears to us to be
illogical. Second part is referable to a misconduct minor in
character which does not by itself warrant an order of
dismissal but due to continued acts of misconduct would
have insidious cumulative effect on service morale and may
be a ground to take lenient view of giving an opportunity to
6 of 13
Neutral Citation No:=2024:PHHC:036846
CWP-10132-2006 (O&M) 7 2024:PHHC:036846
reform. Despite giving such opportunities if the delinquent
officer proved to be incorrigible and found completely unfit
to remain in service then to maintain discipline in the
service, instead of dismissing the delinquent officer, a lesser
punishment of compulsory retirement or demotion to a lower
grade or rank or removal from service without affecting his
future chances of re-employment, if any, may meet the ends
of justice. Take for instance the delinquent officer who is
habitually absent from duty when required. Despite giving
an opportunity to reform himself he continues to remain
absent from duty off and on. He proved himself to be
incorrigible and thereby unfit to continue in service.
Therefore, taking into account his long length of service and
his claim for pension he may be compulsorily retired from
service so as to enable him to earn proportionate pension.
The second part of the rule operates in that area. It may also
be made clear that the very order of dismissal from service
for gravest misconduct may entail forfeiture of all
pensionary benefits. Therefore, the word 'or' cannot be read
as "and". It must be disjunctive and independent. The
common link that connects both clauses is "the gravest
act/acts of misconduct".
10. A conspectus of Rule 16.2(1) of 1934 Rules and of afore-
cited judgment reveals that a police officer may be dismissed from
service subject to following circumstances and conditions:
1. If the police officer is accused of gravest misconduct;
or
2. The cumulative effect of continued misconduct proves
that police officer is incorrigible and completely unfit for the
service;
3. The authority passing order shall consider length of
service as well as claim of pension;
4. Having regard to length of service and claim of
7 of 13
Neutral Citation No:=2024:PHHC:036846
CWP-10132-2006 (O&M) 8 2024:PHHC:036846
pension, an employee instead of dismissal from service may
be compulsorily retired.
11. Sub-Rule (1) of 16.2 of 1934 Rules is a general rule which
permits authorities to dismiss an officer on the occurrence of an event as
contemplated therein. The said Rule is an open ended rule. It is a
discretionary provision and discretion is always subject to judicial
review. An officer may or may not be guilty of gravest misconduct. It is
always subject to judicial review to ascertain whether the officer is guilty
of gravest misconduct or not. The question whether an officer is guilty of
cumulative effect of misconduct proving incorrigibility and complete
unfitness is also a question of fact and has always remained subject
matter of judicial review. Sub-Rule (2) carves out an exception to Sub-
Rule (1) and in a way it is a proviso to Sub-Rule (1) which leaves no
discretion with authorities and enjoins that an officer shall be liable to be
dismissed if he has been convicted and sentenced to imprisonment on a
criminal charge.
12. The proviso to Sub-rule (2) of Rule 16.2 carves out window
of discretion. The disciplinary authority in exceptional circumstances
may grant punishment other than dismissal from service.
13. The petitioner was convicted under Section 279 and 337 of
IPC and he was released on probation. As per Section 12 of Probation of
Offenders Act, 1958 if a person is released on probation under Sections 3
or 4 of the said Act, he shall not suffer disqualification attaching to such
conviction. The relevant extracts of Section 12 of the Act read as:
"12. Removal of disqualification attaching to conviction
- Notwithstanding anything contained in any other law, a
8 of 13
Neutral Citation No:=2024:PHHC:036846
CWP-10132-2006 (O&M) 9 2024:PHHC:036846
person found guilty of an offence and dealt with under the
provisions of section 3 or section 4 shall not suffer
disqualification, if any, attaching to a conviction of an
offence under such law: Provided that nothing in this section
shall apply to a person who, after his release under section 4,
is subsequently sentenced for the original offence."
14. As per Rule 16.2 (2) of 1934 Rules, normal rule in case of
conviction on a criminal charge and sentence to imprisonment is
dismissal, however, as per 1st proviso, punishing authority in an
exceptional case involving manifestly extenuating circumstances for
reasons to be recorded and with the prior approval of the next higher
authority, may impose punishment other than dismissal. For the ready
reference first proviso to Sub-Rule (2) of Rule 16.2 is reproduced as
below:
"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"
From the reading of above cited proviso, it is evident that
punishment other than dismissal from service can be awarded if:
(i) it is an exceptional case;
(ii) there are manifestly extenuating circumstances;
(iii) reasons are recorded by punishing authority; and
(iv) punishing authority seeks prior approval of next
higher authority.
15. The question of punishment other than dismissal from
service, in case of conviction and sentence of an employee, has been
considered by Supreme Court in Divisional Personnel Officer, Southern
9 of 13
Neutral Citation No:=2024:PHHC:036846
CWP-10132-2006 (O&M) 10 2024:PHHC:036846
Rly. v. T.R. Chellappan, (1976) 3 SCC 190. The Court has held that in
case of trivial or petty offences, an employee cannot be subjected to harsh
punishment of dismissal. The relevant extract of the judgment read as:
"21............ It may be that the conviction of an accused
may be for a trivial offence as in the case of the respondent
T.R. Challappan in Civil Appeal 1664 of 1974 where a stern
warning or a fine would have been sufficient to meet the
exigencies of service. It is possible that the delinquent
employee may be found guilty of some technical offence, for
instance, violation of the transport rules or the rules under
the Motor Vehicles Act and so on, where no major penalty
may be attracted. It is difficult to lay down any hard and fast
rules as to the factors which the disciplinary authority would
have to consider, but I have mentioned some of these factors
by way of instances which are merely illustrative and not
exhaustive. In other words, the position is that the conviction
of the delinquent employee would be taken as sufficient
proof of misconduct and then the authority will have to
embark upon a summary inquiry as to the nature and extent
of the penalty to be imposed on the delinquent employee and
in the course of the inquiry if the authority is of the opinion
that the offence is too trivial or of a technical nature it may
refuse to impose any penalty in spite of the conviction."
16. A Constitution Bench in Union of India v. Tulsiram Patel,
(1985) 3 SCC 398 approved T.R. Challappan's case to the extent that
proviso to Article 311 (2) is not mandatory and Disciplinary Authority
may consider circumstances set out in the said judgment before imposing
a penalty upon a delinquent Government servant. The Court further held
that it is not mandatory that major penalty of dismissal, removal or
reduction in rank should be imposed upon the concerned Government
servant. The penalty which can be imposed may be some other major
10 of 13
Neutral Citation No:=2024:PHHC:036846
CWP-10132-2006 (O&M) 11 2024:PHHC:036846
penalty or even a minor penalty depending upon the facts and
circumstances of the case. In order to arrive at a decision as to which
penalty should be imposed, Disciplinary Authority will take into
consideration various factors set out in T.R. Challappan' case. The
relevant extracts of the judgment reads as:
"114. So far as Challappan case is concerned, it is not
possible to find any fault either with the view that neither
clause (a) of the second proviso to Article 311(2) nor clause
(i) of Rule 14 of the Railway Servants Rules is mandatory or
with the considerations which have been set out in the
judgment as being the considerations to be taken into
account by the disciplinary authority before imposing a
penalty upon a delinquent government servant. Where a
situation envisaged in one of the three clauses of the second
proviso to Article 311(2) or of an analogous service rule
arises, it is not mandatory that the major penalty of
dismissal, removal or reduction in rank should be imposed
upon the concerned government servant. The penalty which
can be imposed may be some other major penalty or even a
minor penalty depending upon the facts and circumstances
of the case. In order to arrive at a decision as to which
penalty should be imposed, the disciplinary authority will
have to take into consideration the various factors set out in
Challappan case."
17. In the case in hand, the petitioner was found guilty of
commission of offence under Sections 279 and 337 of IPC and was not
awarded any sentence whereas he was released on probation. From the
reading of Rule 16.2 of 1934 Rule, it comes out that a person shall be
dismissed from service if he is convicted and sentenced to
imprisonment, however, in the present case, the petitioner was never
subjected to any imprisonment. The Appellate Court specifically pointed
11 of 13
Neutral Citation No:=2024:PHHC:036846
CWP-10132-2006 (O&M) 12 2024:PHHC:036846
out that the offences under which petitioner is convicted are not of moral
turpitude and it would not incur any disqualification for the petitioner.
As per judgment of Supreme Court in T.R. Challappan
(supra) and Tulsiram Patel (supra), the Disciplinary Authority is
supposed to consider nature of offence and extenuating circumstances.
The petitioner has been convicted for commission of offence punishable
under Sections 279 and 337 of IPC. From the perusal of impugned order,
it comes out that Disciplinary Authority has failed to consider the nature
of offence alongwith mandate of Section 12 of 1958 Act and 1st proviso
to Rule 16.2 of 1934 Rules.
18. In the wake of mandate of Article 311 of the Constitution of
India, 1st proviso to Sub-Rule (2) of Rule 16.2 of Punjab Police Rules,
1934 and judgment of Supreme Court in T.R. Challappan (supra) &
Tulsiram Patel (supra), this Court finds that the impugned order deserves
to be set aside and accordingly set aside. The petitioner is ordered to be
reinstated.
19. The petitioner approached this Court in 2006 and his petition
was admitted vide order dated 11.07.2006. The petitioner is not at fault
for this long and unexplained delay in adjudication of this writ petition.
No litigant can be made to suffer on account of delayed adjudication
because it would amount to denial of justice. It is common principle of
law that justice not only should be done, it must also seen to be done. As
per principle of 'no work no pay', the petitioner is not entitled to back
wages but it would be travesty and miscarriage of justice if he is totally
denied of back wages. Thus, keeping in view principle of 'no work no
pay'; balance of convenience & equity; rule of law and no lapse on the
12 of 13
Neutral Citation No:=2024:PHHC:036846
CWP-10132-2006 (O&M) 13 2024:PHHC:036846
part of petitioner for delayed adjudication, it is hereby further held that
petitioner from the date of filing of civil writ petition would be entitled to
33% of back wages. He shall also be entitled to other service benefits.
The respondent shall do the needful within 3 months from today. It is
further made clear that petitioner would not be entitled to interest on the
aforesaid amount.
20. Pending misc. application(s), if any, shall also stand
disposed of.
( JAGMOHAN BANSAL )
JUDGE
14.03.2024
Ali
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
13 of 13
