Punjab-Haryana High Court
Charan Singh vs State Of Punjab And Others on 12 November, 2024
Neutral Citation No:=2024:PHHC:147332
CWP-30528-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
126 CWP-30528-2024
Date of Decision: 12.11.2024
CHARAN SINGH .... PETITIONER
V/S
STATE OF PUN AND OTHERS .... RESPONDENTS
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present:- Mr. Karambir Singh Kharbanda, 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 :
(i) order dated 01.03.2008 (Annexure P-3) whereby he was
dismissed from service;
(ii) order dated 14.09.2010 (Annexure P-4) whereby appellate
authority dismissed his appeal; and
(iii) order dated 11.07.2024 (Annexure P-9) whereby Director
General of Police has dismissed his petition.
2. The petitioner joined Punjab Police as Constable on 11.09.1979.
An FIR No.146 dated 31.07.2000 under Sections 307, 326, 323, 324, 148 and
149 of Indian Penal Code, 1860 (for short 'IPC') came to be registered against
him at Police Station Payal, District Ludhiana. He faced trial and came to be
convicted by learned Additional Sessions Judge, Fast Track Court, Ludhiana
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vide judgment dated 17.07.2004. He was awarded sentence of 03 years
rigorous imprisonment under Section 326, 323, 148 and 149 of IPC. He
preferred an appeal before this Court wherein his sentence was enhanced from
03 years to 04 years. He has already suffered aforesaid sentence.
3. Mr. Karambir Singh Kharbanda, Advocate submits that the
petitioner was mechanically dismissed from service. Mere conviction in
criminal case does not entail termination from service. The authorities were
bound to examine judgment of conviction and thereafter pass order of
punishment in departmental proceedings. No employee can be dismissed
automatically. The authorities are bound to apply their mind whereas in the
instant case, the petitioner was dismissed from service on account of his
conviction. The respondent did not conduct any enquiry and straightway
dismissed him from service. The respondent has reinstated or compulsorily
retired many police officers who were convicted in criminal proceedings.
4. Concededly, the petitioner was dismissed from service on
01.03.2008. He was convicted by trial Court on 17.07.2004 meaning thereby
the respondent taking a lenient view did not dismiss him from service as soon
as he was convicted by trial Court.
5. The petitioner was governed by Punjab Police Rules, 1934 (for
short '1934 Rules'). Rule 16.2 of 1934 Rules provides for dismissal from
service. The said Rule 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
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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.
(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."
6. The case of the petitioner is not covered by sub-rule (1) whereas
it falls within four corners of sub-rule (2) of said Rule. sub-rule (1) 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
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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.
7. The expression used in sub-rule (2) needs to be noticed. The
legislature has used expression 'shall' which indicates that there is no
discretion with authorities in case of conviction. Expression 'criminal charge'
is preceded by expression 'on a' which means that nature of charge is
irrelevant. The officer may be guilty of an offence either committed in the
discharge of duty or having no bearing with his official duties. In every case,
where an officer is convicted and sentenced to imprisonment on a criminal
charge, he is liable to be dismissed. The proviso to said sub-rule is also
important to be noticed. The proviso provides that if conviction is set aside in
appeal or revision, the appointing authority shall review the case keeping in
view the instructions issued by the Government.
8. It would also be relevant to notice Rule 16.3 of 1934 Rules. It
provides that if a police officer is acquitted by Criminal Court, he shall not be
punished departmentally on the same charge or on a different charge upon the
evidence cited in the criminal case. Rules 16.3 of 1934 Rules is reproduced as
below:
"16.3. Action following on a judicial acquittal. -
(1) When a Police Officer has been tried and acquitted by a
criminal court he shall be not be punished departmentally on
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the same charge or on a different charge upon the evidence
cited in the criminal case, whether actually led or not, unless -
(a) the criminal charge has failed on technical grounds;
or
(b) in the opinion of the Court or of the Superintendent
of Police, the prosecution witnesses have been won
over; or
(c) the Court has held in its judgment that an offence
was actually committed and that suspicion rests upon
the police officer concerned; or
(d) the evidence cited in the criminal case discloses facts
unconnected with the charge before the court which
justify departmental proceedings on a different charge;
or
(e) additional evidence admissible under rule 16.25(1)
in departmental proceedings is available.
(2) Departmental proceedings admissible under sub-rule (1)
may be instituted against Lower Subordinates by the order of
the Superintendent of Police but may be taken against Upper
Subordinates only with the sanction of Deputy Inspector
General of Police, and a police officer against whom such
action is admissible shall not be deemed to have been
honorably acquitted for the purpose of rule 7.3 of the Civil
Services Rules (Punjab), Volume I, Part I."
9. The acquittal from criminal proceedings does not automatically
entitle immunity from departmental action. A police officer may be subjected
to departmental punishment despite acquittal in criminal proceedings as per
exceptions carved out in Rule 16.3 of 1934 Rules. If acquittal is not based
upon exceptions carved out in Rule 16.3 of 1934 Rules, a police officer is
entitled to immunity from departmental action. The natural corollary is that if
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an officer is punished in criminal proceedings, he should be departmentally
punished.
10. It is settled proposition of law that for the same offence two
persons cannot be visited with different yardsticks. If, for the same offence,
one officer is awarded higher punishment than others, it amounts to violation
of Articles 14 and 21 of Constitution of India. The contention of the petitioner
to the extent that similarly situated persons cannot be visited with different
punishment is sustainable, however, it needs to be noticed that there can be no
equality or equity against law. If a person by mistake or against the law has
been granted some concession, the Court cannot extend or ask the authorities
to extend the same which is not permissible in law. The plea of discrimination
is never available in an act of illegality. An illegal order cannot constitute the
basis for a legitimate complaint of discrimination. Thus, an illegal or
unwarranted order cannot be made the basis of issuing a writ compelling an
authority to repeat that illegality or to pass another unwarranted order. The
extraordinary and discretionary power of the High Court cannot be exercised
for such a purpose. Giving effect to such pleas would be prejudicial to the
interests of law and will do incalculable mischief to public interest. It will be a
negation of law and the rule of law.
11. In the wake of above discussion and findings, it is hereby held :
i. A Police Officer who has been convicted on a criminal
charge and sentenced to imprisonment cannot be awarded
punishment less than dismissal from service. As per sub-
rule (2) of Rule 16.2 of 1934 Rules, the Authorities have
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no option except to dismiss an employee who has been
convicted and sentenced to imprisonment.
ii. If an officer has been dismissed on the ground of
conviction, he cannot claim parity with similarly situated
employees because pre-mature retirement or reinstatement
of an officer despite conviction is bad in the eye of law.
12. The Supreme Court in State of Madhya Pradesh and others v.
Bhupendra Yadav, 2023 SCC Online SC 1181 while dealing with question of
appointment of officers of law enforcing agencies has held that standard of
rectitude must be higher than other posts. The Court has held:
"24. The aforesaid aspects were rightly factored in by the
appellant - State Government while issuing the communication
dated 24th August, 20178 and declaring that the respondent
was unfit for appointment to the said post. The yardstick to be
applied in cases where the appointment sought relates to a Law
Enforcement Agency, ought to be much more stringent than
those applied to a routine vacancy. One must be mindful of the
fact that once appointed to such a post, a responsibility would
be cast on the respondent of maintaining law and order in the
society, enforcing the law, dealing with arms and ammunitions,
apprehending suspected criminals and protecting the life and
property of the public at large. Therefore, the standard of
rectitude to be applied to any person seeking appointment in a
Law Enforcement Agency must always be higher and more
rigourous for the simple reason that possession of a higher
moral conduct is one of the basic requirements for appointment
to a post as sensitive as that in the police service."
13. A two-judge Bench of Supreme Court in Satish Chandra Yadav
v. Union of India and others, 2023 (7) SCC 536 has adverted with the
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question of appointment of a candidate against whom criminal case is
pending/or was instituted. The Court has held that despite disclosure and
acquittal in a criminal case, the employer may not retain an employee. In case
of police force, matter should be thoroughly scrutinized by a designated
officer because question of public confidence is involved. The relevant
extracts of the judgment read as:
"93. In such circumstances, we undertook some exercise to
shortlist the broad principles of law which should be made
applicable to the litigations of the present nature. The
principles are as follows:
93.1. Each case should be scrutinised thoroughly by the public
employer concerned, through its designated officials -- more
so, in the case of recruitment for the Police Force, who are
under a duty to maintain order, and tackle lawlessness, since
their ability to inspire public confidence is a bulwark to
society's security. (See Raj Kumar [State v. Raj Kumar, (2021)
8 SCC 347 : (2021) 2 SCC (L&S) 745])
93.2. Even in a case where the employee has made declaration
truthfully and correctly of a concluded criminal case, the
employer still has the right to consider the antecedents, and
cannot be compelled to appoint the candidate. The acquittal in
a criminal case would not automatically entitle a candidate for
appointment to the post. It would be still open to the employer
to consider the antecedents and examine whether the candidate
concerned is suitable and fit for appointment to the post."
14. From the observation of Supreme Court in above cited
judgments, it comes out that in case of appointment in Armed Forces,
antecedents of candidates play vital role. Authorities cannot ignore criminal
trial despite acquittal. If appointment of a candidate having criminal
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antecedents cannot be accepted, it would be travesty of justice and against the
public law to continue in service a convicted officer.
15. In the case in hand, the petitioner was concededly convicted and
finally sentenced to imprisonment of 04 years. The petitioner had undergone
the said sentence. If the petitioner, on the ground of parity is reinstated, it
would be in violation of mandate of sub-rule (2) of Rule 16.2 of 1934 Rules.
This Court, on the ground of parity, cannot ask the respondents to violate the
mandate of law. The language of sub-Rule (2) of Rule 16.2 is unambiguous.
Its even simple and literal meaning enjoins that as soon as an officer is
convicted and awarded sentence, he cannot be retained in the force. There
seems object of the said Rule. The police force is meant to maintain law and
order. It commands respect. If an officer who has been convicted and
sentenced is retained in service, it would tarnish image of the force and shake
faith of the public at large.
16. In the wake of mandate of sub-rule (2) of Rule 16.2 of Punjab
Police Rules, 1934, this Court does not find any infirmity in the impugned
orders, thus, refrain to ask the authorities to reinstate the petitioner.
17. In the wake of aforesaid discussion and findings, this Court is of
the considered opinion that present petition being bereft of merit deserves to
be dismissed and accordingly dismissed.
(JAGMOHAN BANSAL)
JUDGE
12.11.2024
anju
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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