Quashed

Raj Pal v. State of Haryana & Ors.

Punjab & Haryana HC16 May 2012CWP/16661/2010

Case brief

AI extract

What is this about?

The Court quashed orders dismissing the petitioner from service and rejecting his reinstatement plea. The dismissal relied on a conviction subsequently set aside by this Court. The Court held that invoking powers to dispense with an enquiry under Article 311(2)(b) on the ground that witnesses would not testify is illegal when the conviction basis for dismissal no longer exists, violating constitut

What did the court decide?

Impugned orders dated 31.7.2007 and 29.6.2010 quashed; petitioner entitled to consequential benefits.

Raj Pal Vs State of Haryana & Ors. — Pension and Retirement Benefits | Punjab & Haryana HC (2012)

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C.W.P.No.16661 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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C.W.P.No.16661 of 2010 Date of Decision:- 16.05.2012

Raj Pal

....Petitioner(s)

vs.

State of Haryana and others

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....Respondent(s)

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CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH

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Present:Mr.Madan Pal, Advocate, for the petitioner.

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Mr.Harish Rathee, Sr.DAG, Haryana.

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AUGUSTINE GEORGE MASIH, J. (Oral)

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Petitioner has approached this Court assailing the order dated 31.7.2007 (Annexure P-1) dismissing the petitioner from service and the order dated 29.6.2010 (Annexure P-5) vide which the representation preferred by the petitioner for reinstatement on acquittal in criminal case has been rejected.

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It is the contention of the counsel for the petitioner that the petitioner was implicated in a criminal case bearing FIR No.121 dated 19.04.1995 registered under Section 7/13 of the Prevention of Corruption Act at Police Station Civil Lines, Rohtak. After trial, petitioner was convicted by the learned Special Judge, Rohtak on 19.9.1998 imposing sentence to undergo rigorous imprisonment for 2 years and to pay a fine of

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C.W.P.No.16661 of 2010

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` 2000/-. In default of payment of fine, the accused shall further undergo rigorous imprisonment for one month.

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This order of conviction was challenged by the petitioner by filing criminal appeal No.819-SB of 1998 which was admitted by this Court. During the pendency of the appeal preferred by the petitioner, in the light of the conviction of the petitioner, order of dismissal from service dated 31.7.2007 was passed by the Superintendent of Police, Rohtak. A line was further added that the powers conferred under Article 311 (2)(b) of the Constitution of India were also invoked. This, the counsel for the petitioner contends, is without any basis as no reasons whatsoever have been assigned by the respondents in dispensing with the enquiry to be held against him. In any case, he contends that in the criminal appeal preferred by the petitioner, his order of conviction was set aside by this Court vide order dated 2.2.2010 (Annexure P-2) and he was acquitted of the charges framed against him. On the basis of his acquittal, petitioner requested the respondents to reinstate him on the post of Head Constable which was held by him prior to his dismissal from service. This application of the petitioner was not responded to and the petitioner, therefore, filed CWP No.9189 of 2010 which was disposed of by this Court on 18.5.2010 with directions to the Director General of Police, Haryana, to consider the representation of the petitioner and decide the same within a period of one month. In pursuance to the directions issued by this Court, the Director General of Police, Haryana vide order dated 29.6.2010 rejected the representation of the petitioner. Petitioner has, thus, assailed the order of his dismissal dated 31.7.2007 and order dated 29.6.2010 (Annexures P1

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and P-5) respectively through the present writ petition.

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Counsel submits that the order of dismissal of the petitioner deserves to be set aside in the light of his acquittal as the same was based upon conviction of the petitioner which has been set aside by this Court in a criminal appeal preferred by him. After the acquittal, the petitioner had moved a representation for his reinstatement which has been rejected by the Director General of Police without appreciating the true legal position as the order of his dismissal was for the reason that he had been convicted which was no more available to the respondents to harp upon or rely upon and, therefore, the rejection of the representation of the petitioner is not in accordance with law.

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Reliance has been placed upon the judgment of a Division Bench of this Court in Shashi Kumar vs. Uttar Haryana Bijli Vitaran Nigam and another, 2005 (1) SCT 576 wherein it has been held that on acquittal in a criminal case the employee is entitled to reinstatement in service. Reliance has also been placed upon another Division Bench judgment of this Court in the case of Shiv Kumr Goel vs. State of Haryana and another, 2007 (1) SCT 739 which again reinforced the same view. On this basis, counsel for the petitioner contends that the impugned order cannot sustain and deserves to be set aside.

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On the other hand, counsel for the respondents submits that there are serious allegations against the petitioner as he was involved in a corruption case. He was, as a matter of fact, convicted by the trial Court and has only been acquitted by the appellate Court. Vide the impugned order, detailed facts have been referred to and the reasons for rejecting the

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representation of the petitioner have also been clearly spelt out. He contends that the Competent Authority has invoked the powers under Article 311 (2)(b) of the Constitution of India and has dismissed the petitioner from service which is in accordance with law. The reason assigned for not holding the enquiry against the petitioner is that the witnesses do not come-forward to support the charges against the officials in the departmental enquiry and, therefore, the Competent Authority in its wisdom has come to a conclusion that the enquiry should not be held against the petitioner. He, on this basis, contends that the present writ petition deserves to be dismissed.

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I have heard counsel for the parties and gone through the records of the case.

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Facts as narrated above clearly spelt out that the petitioner was initially convicted by the trial Court for an offence involving corruption which led to his dismissal from service although an appeal preferred by him was admitted and pending before this Court. Petitioner on decision of the said appeal, which resulted in his acquittal by this Court vide order dated 2.2.2010, submitted a representation for his reinstatement as the primary reason for his dismissal vide order dated 31.7.2007 (Annexure P-1) was his conviction. The said representation was rejected by the Director General of Police vide impugned order dated 29.6.2010 (Annexure P-5). The reason assigned for rejecting his prayer for reinstatement was that he was involved in a misconduct of receiving gratification which is of a criminal propensity and moral turpitude was involved, which would be unbecoming of a member of the disciplined force. The exercise of powers

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as contained under Article 311 (2)(b) of the Constitution of India while dismissing the petitioner from service has also been affirmed vide the impugned order although no reason for invoking the powers under Article 311 (2)(b) of the Constitution of India has been spelt out in the order but the reasons which have been assigned in the reply and during arguments it is claimed that none of the witnesses come-forward to depose against an official. This may be true but nothing has been shown as to how the constitutional guidelines under Article 311 of the Constitution can be escaped, in case the employee is ultimately acquitted by the Court. This order passed by the Director General of Police is not in accordance with law.

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It is true that had the petitioner involved in an offence of demanding and was granted bribe, it would clearly come within the ambit of moral turpitude which would be unbecoming of a Police Officer and, therefore, disentitling him to the claim of reinstatement. But in the light of the acquittal of the petitioner by the appellate Court, this assertion of the Director General of Police recorded in the impugned order is totally baseless. This would lead to a situation where in all cases despite the order of acquittal passed by the Courts, the Authorities could on their own whims and fancies proceed to hold the conduct of the employee to be of such a nature which would disentitle them to be a member of the disciplined force and that being so would be against the constitutional guarantees provided under Article 311 of the Constitution. For proceeding against an employee, there has to be evidence against him and for that, there is a procedure prescribed under the Statutory Rules which need to be complied

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C.W.P.No.16661 of 2010

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with strictly i.e. to hold an enquiry. Although an exception has been carved out in the Constitution itself where on conviction of an employee, the Punishing Authority can proceed to dismiss him from service but if that is the only basis for proceeding against an employee, then on acquittal, the employee also has an equivalent right of reinstatement but that does not obliterate or curtail the right of the Punishing/ Disciplinary Authority from holding an enquiry against the concerned delinquent employee and it is always open to the Department to proceed against him as per the Rules governing the service, which course has not been adopted by the respondents in the present case and a short cut has been adopted by invoking the powers under Article 311 (2) (b) of the Constitution of India i.e. dispensing with an enquiry.

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By now, it is well settled that if such an extreme power is to be exercised by the Competent Authority, it must be in a position to justify its decision. In the present case, the Punishing Authority as well as the Director General of Police, Haryana, have not been able to project such a reason which would persuade this Court to accept that a departmental enquiry against the petitioner is not practicable. The reason only assigned for not holding an enquiry is that the witnesses do not come-forward to depose in a departmental enquiry against the delinquent employee. If such a reasoning is accepted by the Court, then no enquiry would be required in any case as the Competent Authority would simply assert that an enquiry is not likely to conclude in proving the charges against an employee which would lead to very serious and dangerous results. Although powers have been conferred on the authorities to dispense with an enquiry but it

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has to be exercised in a reasonable and justified manner. It cannot be at the whims and fancies of the Authorities. The reasons which have been assigned in the present case, therefore, are not in accordance with law.

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In view of the above and in the light of the Division Bench judgment of this Court in Shashi Kumar's and Shiv Kumar Goel's cases (supra) , the impugned orders cannot sustain and are hereby quashed. Petitioner is held entitled to all consequential benefits which would flow from the quashing of the impugned orders.

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Respondents are, however, at liberty to proceed against the petitioner if they so decide, in accordance with law.

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May 16, 2012 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE

Raj Pal v. State of Haryana & Ors.

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Raj Pal v. State of Haryana & Ors.

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