Punjab-Haryana High Court
Harpreet Singh Benipal vs State Of Punjab And Others on 6 May, 2024
Neutral Citation No:=2024:PHHC:062178
CWP-19833-2017 -1- 2024:PHHC: 062178
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
117 CWP-19833-2017
Date of decision: 06.05.2024
HARPREET SINGH BENIPAL ....PETITIONER
V/S
STATE OF PUNJAB AND OTHERS ...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present: Mr. D.S. Patwalia, Senior Advocate with
Ms. Rishu Bajaj, Advocate
for the petitioner.
Mr. Pawan Kumar, 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 communication dated
08.08.2017 (Annexure P-7) whereby he has been informed of re-inquiry of
charge-sheet earlier issued to him by Mr. K.S. Pannu, I.A.S., Secretary,
Department of Revenue, Punjab.
2. Before adverting with facts of the case, it would be appropriate to
notice that by impugned communication, the petitioner was intimated that Mr.
K.S. Pannu, I.A.S. has been appointed to re-inquire the charge-sheet earlier
issued to him, however, he was not supplied copy of order whereby the order
passed by Disciplinary Authority was reviewed. The respondent along with reply
has placed on record order dated 03.08.2017 (Annexure R-1) passed by
Additional Chief Secretary, Government of Punjab, Home Affairs and Justice
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Department. As per said order, the Government of Punjab has decided to
conduct fresh inquiry and for the said purpose, Mr. Kahan Singh Pannu, I.A.S.
has been nominated as an Inquiry Officer and Mr. Gurtej Singh, DSP has been
deputed as Presenting Officer.
3. The petitioner during 2011 was posted as DSP at Jalandhar. An FIR
No. 53 dated 21.04.2011 under Sections 302, 34 IPC and 25, 27, 54, 59 of Arms
Act, at Police station Division No.6, Jalandhar came to be registered. The police
after completing investigation filed its report and Trial Court concluded the trial.
Learned Sessions Judge while passing judgment dated 03.08.2015 (Annexure P-
1) deprecated role and conduct of present petitioner. The relevant extracts of the
judgment dated 03.08.2015 read as:
"Furthermore, this witness (Harpreet Singh PPS) remained
connected with the investigation of this case from 21.4.2015 to
25.4.2015, as supervisory officer, so his appearing as defence witness
and deposing in favour of the accused against proved facts, is not
appreciable."
4. In the wake of observations of District and Sessions Judge,
Gurdaspur, the respondent decided to initiate departmental proceedings against
the petitioner. A retired District and Sessions Judge was appointed as Inquiry
Officer who after concluding inquiry submitted his report dated 08.07.2016
wherein he exonerated the petitioner. The Disciplinary Authority i.e. Additional
Chief Secretary vide order dated 26.07.2016 (Annexure P-6) accepted findings
of Inquiry Officer.
5. The complainant of the aforesaid FIR filed multiple representations
before Chief Minister requesting him to re-examine findings of Inquiry Officer.
The Chief Minister formed an opinion that matter should be re-inquired and
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accordingly Additional Chief Secretary passed order dated 03.08.2017 whereby
Kahan Singh Pannu, I.A.S. was appointed Inquiry Officer to conduct fresh
inquiry. This led to filing of present writ petition.
6. Mr. D.S. Patwalia, Senior Advocate submits that fresh inquiry can
be conducted in terms of Rule 21 of the Punjab Civil Services (Punishment and
Appeal) Rules, 1970 (for short '1970 Rules'). An authority can review an order
passed under 1970 Rules, whereas, in the case in hand, there was no order, thus,
impugned order was beyond the scope of Rule 21 of 1970 Rules. The order of
review can be passed within 6 months by an appellate authority and by any other
authority duly notified by the Governor within time specified by Governor
though he himself can review order without limitation period. The order
dropping the proceedings was passed by Additional Chief Secretary and
impugned order has also been passed by Additional Chief Secretary. The
successor-in-office could not review order of his predecessor.
7. Per contra, Mr. Pawan Kumar, DAG, Punjab submits though order
dated 03.08.2017 was passed by Additional Chief Secretary, yet, it was passed
on the direction of Chief Minister who is an appellate authority against the order
passed by Additional Chief Secretary. The order dropping charges was passed by
Additional Chief Secretary, thus, Chief Minister was competent to review order
passed by Disciplinary Authority and direct re-inquiry. He further submits that
Government has placed the matter before Governor and sought post-facto
approval, thus, defect, if any, stands rectified. The proceedings against the
petitioner cannot be dropped on technical or procedural infirmities.
8. During the course of hearing, learned State counsel produced
internal noting dated 22.09.2021. It discloses that matter was put up before the
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Governor seeking post-facto approval of order passed by Chief Minister. Copy
of the noting is taken on record as 'Annexure 'A'.
9. I have heard the arguments of both sides and perused the record
with their able assistance.
10. The conceded position emerging from record is that the petitioner at
the time of registration of FIR No. 53 dated 21.04.2011 was posted as DSP at
Jalandhar. The police investigated the matter and filed its report. Learned
Sessions Judge, Gurdaspur adjudicated the matter. While passing the judgment
dated 03.08.2015, he observed about the act and conduct of the petitioner. A
retired District and Sessions Judge, in terms of 1970 Rules, was appointed as
Inquiry Officer who exonerated him from all the charges and disciplinary
authority i.e. Additional Chief Secretary accepted report of Inquiry Officer and
vide order dated 26.07.2016 withdrew departmental proceedings. The
complainant of FIR filed representations before the Chief Minister. Being an
appellate authority, Chief Minister reviewed the order of Disciplinary Authority
and ordered to re-inquire the matter. No formal review order was passed by
Chief Minister and it came to be passed by Additional Chief Secretary. The
petitioner is assailing institution of fresh inquiry against him.
11. The procedure for imposing major penalty has been prescribed by
Rule 8 of 1970 Rules. As per said Rule, the Inquiry Officer has to conduct
inquiry in the manner prescribed therein and has to submit his report to
Disciplinary Authority. The Disciplinary Authority may himself be an Inquiry
Officer. The Inquiry Officer after conclusion of inquiry has to prepare a report
which contains the articles of charge, statement of imputation of misconduct or
misbehavior; defence of the Government employee in respect of each article of
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charge; an assessment of evidence in respect of each article of charge; the
findings on each article of charge and reasons therefore, written brief, if any,
filed by the Presenting Officer and the orders, if any, made by punishing
authority. Sub-Rule (23) of Rule 8 is reproduced as below:-
"Rule 8. Procedure for imposing major penalties
Xxx xxx xxx
(23)(i) After the conclusion of the inquiry, a report shall be
prepared and it shall contain-
(a) the articles of charge and the statement of the imputations of
misconduct or misbehavior;
(b) the defence of the Government employee in respect of each
article of charge;
(c) an assessment of the evidence in respect of each article of
charge;
(d) the findings on each article of charge and the reasons
therefore.
Explanation. - If in the opinion of the inquiring authority the
proceedings of the inquiry establish any article of charge different from
the original articles of the charge, it may record its findings on such
article of charge:
Provided that the findings on such article of charge shall not be
recorded unless the Government employee has either admitted the facts
on which such article of charge is based or has had a reasonable
opportunity of defending himself against such article of charge.
(ii) The inquiring authority where it is not itself the punishing
authority shall forward to the punishing authority the records of inquiry
which shall include -
(a) the report prepared by it under clause (i);
(b) the written statement of defence, if any, Submitted by the
Government employee;
(c) the oral and documentary evidence produced in the course
of the inquiry;
(d) written briefs, if any filed by the presenting officer or the
Government employee or both during the course of the inquiry;
and
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(e) the orders, if any, made by the punishing authority and the
inquiring authority in regard to the inquiry."
12. In the case in hand, the Inquiry Officer was different from
Disciplinary Authority, thus, the Inquiry Officer after concluding inquiry placed
his report before the Disciplinary Authority. The Disciplinary Authority has to
take action on the Inquiry Report. The procedure for taking action on Inquiry
Report is prescribed by Rule 9 of 1970 Rules. The Disciplinary Authority may
or may not accept report of Inquiry Officer. Rule 9 is reproduced as below:-
Rule 9. Action on the inquiring report.
(1) The punishing authority, if it is not itself the inquiring authority
may, for reasons to be recorded by it in writing, remit the case to the
inquiring authority for further inquiry and report and the inquiring
authority shall thereupon proceed to hold the further inquiry according
to the provisions of Rule 8 as far as may be.
(2) The punishing authority shall, if it disagrees with the findings of the
inquiring authority on any article of charge, record its reasons for each
disagreement and record its own findings on such charge, if the evidence
on record is sufficient for the purpose.
(3) If the punishing authority having regard to its findings on all or any
of the articles of charge is of the opinion that any of the penalties
specified in Clauses (i) to (iv) of Rule 5 should be imposed on the
Government employee, it shall, notwithstanding anything contained in
Rule 10, make an order imposing such penalty:
Provided that in every case where it is necessary to consult the
commission, the record of the inquiry shall be forwarded by the
punishing authority to the commission for its advice and such advice
shall be taken into consideration before making any order imposing any
penalty on the Government employee.
(4) If the punishing authority having regard to its findings on all or any
of the articles of charge and on the basis of the evidence adduced during
the inquiry, is of opinion that any of the penalties specified in Clauses (v)
to (ix) of Rule 5 should be imposed on the Government employee, it shall
make an order imposing such penalty and it shall not be necessary to
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give the Government employee any opportunity of making representation
on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the
Commission, the record of the inquiry shall be forwarded by the
punishing authority to the Commission for its advice and such advice
shall be taken into consideration before making an order imposing any
such penalty on the Government employee."
13. In the case in hand, the Disciplinary Authority agreed with the
findings of Inquiry Officer and dropped proceedings against the petitioner. Rule
21 of 1970 Rules provides that Governor or appellate authority or other
authority specified by Governor by general or special order, may review orders
passed under 1970 Rules. The Reviewing Authority may confirm, modify or set-
aside the order or it may remit the case to authority which made the order or to
any other authority directing such authority to make further inquiry as it may
consider proper in the circumstances of the case. Rule 21 of 1970 Rules is
reproduced as below:-
Rule 21- Review.
(1) Notwithstanding anything contained in these Rules, -
(i) the Governor; or
(ii) the appellate authority, within six months of the date of the
order proposed to be reviewed; or
(iii) any other authority, specified in this behalf by the Governor
by a general or special order, and within such time as may be
prescribed in such general or special order;
may at any time, either on his or its own motion or otherwise call for the
records of any inquiry and review any order made under these Rules or
under the Rules repealed by Rule 25 from which an appeal is allowed,
but from which no appeal has been preferred or from which no appeal is
allowed, after consultation with the Commission where such consultation
is necessary, and may -
(a) confirm, modify or set aside the order, or
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(b) confirm, reduce, enhance or set aside the penalty imposed by
the order, or impose any penalty where no penalty has been
imposed; or
(c) remit the case to the authority which made the order or to any
other authority directing such authority to make such further
inquiry as it may consider proper in the circumstances of the case;
or
(d) pass such other orders as it may deem fit:
Provided that no order imposing or enhancing any penalty shall
be made by any reviewing authority unless the Government employee
concerned has been given a reasonable opportunity of making a
representation against the penalty proposed and where it is proposed to
impose any of the specified in clauses (v) to (ix) or Rule 5 or to enhance
the penalty imposed by the order sought to be reviewed to any of the
penalties specified in those clauses, no such penalty shall be imposed
except after an inquiry in the manner laid down in Rule and except after
consultation with the Commission, where such consultation is
necessary."
14. From the perusal of above-quoted Rule, it is evident that Governor,
without limitation period, can review any order passed under 1970 Rules. The
Appellate Authority may review within 6 months from the date of order
proposed to be reviewed and any other notified authority may review within
such time as may be prescribed in general or special order.
15. The petitioner is claiming that only an order passed under 1970
Rules may be reviewed under Rule 21. In the case in hand, there was no order
under 1970 Rules, thus, there was no question of review. This Court, finds itself
unable to countenance his argument because the Disciplinary Authority may or
may not report of the Inquiry Officer. The Inquiry Officer may, in his report,
exonerate the delinquent or may propose for punishment. In case, there is
proposal for exoneration, the Disciplinary Authority may agree to exonerate or
may order to punish. If the contention of the petitioner is accepted, in case of
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disagreement of disciplinary authority with the proposal of exoneration, there
would be an order whereas in case disciplinary authority agrees with the inquiry
officer's proposal of exoneration, there would be no order. The disciplinary
authority has right to agree or disagree with the inquiry officer. Action of
disciplinary authority accepting report of inquiry officer where he has proposed
to exonerate the delinquent, cannot be treated as 'no order' in terms of 1970
Rules. If rejection of report of Inquiry officer is an order, it would be travesty of
justice, if it is held that acceptance of report of inquiry officer whereby he has
proposed to exonerate the delinquent, is not an order.
16. In the case in hand, the inquiry officer proposed to exonerate the
delinquent and disciplinary authority by way of order dated 26.07.2016 accepted
his report and dropped the departmental proceedings, thus, it cannot be held that
said order is not an order in terms of Rule 9 of 1970 Rules.
17. The respondent has pleaded that impugned order was passed by the
Chief Minister acting as an appellate authority. The State has further pleaded
that impugned order was passed in terms of Rule 21 of 1970 Rules. The
appellate authority may pass order within 6 months from the date of order
proposed to be reviewed. The order by disciplinary authority was passed on
26.07.2016 and it was reviewed by appellate authority on 04.08.2017 i.e. after
more than one year from the date of order reviewed. The impugned order was
passed beyond the period prescribed by Rule 21, thus, it deserves to be set aside
on the sole ground of limitation.
18. The respondent has further pleaded that Governor has granted post-
facto approval. The respondent on one hand has pleaded that order-in-review
was passed by the appellate authority i.e. Chief Minister and on the other hand
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has pleaded that post-facto approval has been sought from the Governor. As
soon as power of review is exercised by Appellate Authority under Clause (ii),
there is no question of approval by Governor either under Clause (ii) or (iii) of
Rule 21(1) of 1970 Rules. Clause (i) of Rule 21(1) of 1970 Rules empowers
Governor to review an order. The Governor is further empowered to authorize
any authority by general or special order to review an order within such time as
may be prescribed in such special or general order. From the noting produced by
respondent, it does not come out that Governor, by general or special order, has
appointed any authority to review an order. There is further nothing on record
disclosing that the Governor has prescribed time within which an authority
could review an order.
19. The matter needs to be examined from another angle. The appellate
authority as per the said rule is an independent authority. The respondent has
pleaded that order in review was passed by Chief Minister as an appellate
authority. The Governor is empowered to appoint any other authority but it
would not be just and fair to conclude that any other authority includes appellate
authority which has already exercised its power.
20. In the case in hand, the appellate authority, as pleaded by
respondent, exercised it power on 04.08.2017. The order was passed beyond
limitation period. The Governor has neither appointed any authority in exercise
of power conferred by clause (iii) of Rule 21(1) nor has prescribed any period.
The respondent is claiming that they have sought post-facto approval of order
passed by the Chief Minister. The Chief Minister had passed order as an
appellate authority as per clause (ii) of aforesaid Rule. There was no question or
occasion to grant post-facto approval to order passed by an appellate authority.
The appellate authority was bound to pass order within six months from the date
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of order under review. Concededly, order-in-review was passed beyond six
months. Thus, it is bad in the eye of law.
21. In the wake of above discussion and findings, this Court is of the
considered opinion that present petition deserves to be allowed and accordingly
allowed. The impugned notice and consequent proceedings are hereby quashed.
06.05.2024 [JAGMOHAN BANSAL]
manoj JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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