Dismissed

Nazir Hussain v. State of Punjab and Anr.

Punjab & Haryana HC4 Mar 2014RSA/1113/2013

Case brief

AI extract

What is this about?

In a second appeal, the Punjab and Haryana High Court upheld the dismissal of a suit for declaration and forfeiture of service by a police officer who was acquitted in a criminal trial. The court held the suit was time-barred since it was filed beyond the three-year limit under Article 58 of the Limitation Act and noted that departmental proceedings can proceed even after criminal acquittal if the

What did the court decide?

Instant appeal stands dismissed with no order as to costs.

Nazir Hussain Vs State of Punjab… — Pension and Retirement Benefits | Punjab & Haryana HC (2014)

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RSA No.1113 of 2013

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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RSA No.1113 of 2013 Date of Decision : 4.3.2014

Nazir Hussain

.....Appellant

Vs.

State of Punjab and others

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......Respondents

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CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

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Present : Mr. Dhirender Chopra, Advocate for the appellant. Mr. R.S. Pathania, DAG, Punjab for the State.

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RAMESHWAR SINGH MALIK, J

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Feeling aggrieved against the concurrent findings of facts recorded by both the learned courts below, dismissing his suit for declaration, plaintiff has approached this court by way of instant second appeal.

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Brief facts of the case, as recorded by the first appellate court in the impugned judgement, are that, initially, plaintiff Nazir Hussain had filed a suit for seeking declaration, thereby challenging the legality and validity of the orders dated 28.4.2000, 28.6.2000, 8.10.2001, 21.10.2004 and 27.7.2005 passed by Senior Superintendent of Police, Zone-I, Patiala ADGP (Admn.) and the Director General of Police, Sangrur, DIG, Patiala Range, Patiala, Inspector General of Police, vide which service of the plaintiff with permanent effect was forfeited and also had asserted his entitlement to all benefits, privileges attached to the post and likely to occur in future, as if no orders aforesaid had

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been passed.

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Sahni Greesh 2014.06.12 12:32 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.1113 of 2013

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It was averred in the plaint that the plaintiff joined as a constable on 25.1.1990 and was appointed by the Sr. Superintendent of Police, Sangrur. Case bearing FIR No.18 dated 16.12.1997, PS Malerkotla, was registered against him and he was charged under Sections 363, 366-A and 376 IPC in the said case. However, the plaintiff was acquitted in the aforesaid criminal case by Sh. J.P. Mehmi, Additional Sessions Judge, Sangrur, on 12.3.1999. After acquittal of the plaintiff, a departmental enquiry was conducted by Inspector Japan Singh and without affording an opportunity of hearing, the enquiry officer gave the inquiry report. Subsequently, a show cause notice was served upon the plaintiff and the plaintiff gave a detailed reply to the said show cause notice, but without considering the same, punishment order was passed by the Senior Superintendent of Police, Sangrur. The plaintiff filed an appeal to the DIG, Patiala Range, Patiala, which was also dismissed on 28.6.2000. The plaintiff also filed appeal against the order of DIG to the Inspector General of Police, Zone-I, Patiala, which was also rejected on 8.10.2001. Again the plaintiff had made representation to the ADGP (Admn.), Punjab, Chandigarh and the same was rejected on 21.10.2004 and again the plaintiff filed representation to the DGP, Punjab, Chandigarh, which was rejected on 27.7.2005. The aforesaid punishment orders have been challenged, as they are claimed to be discretionary in character and also confiscatory in character and against the principles of natural justice. The inquiry officer had not supplied copies of the inquiry report to the plaintiff and in view of the same, present suit has been filed.

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In pursuance of the notice issued by the Court, the defendants put appearance and filed written statement. In the written statement, the defendants have raised preliminary objections, that the plaintiff has got no cause of action

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Sahni Greesh 2014.06.12 12:32 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.1113 of 2013 3

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to file the present suit. The appeals had been filed against the order passed by the Senior Superintendent of Police, Sangrur and the same have been dismissed upto the Director General of Police, Punjab, Chandigarh and this court has no territorial jurisdiction to try the present suit. On merits, it has been averred that the plaintiff, alongwith co-accused, were acquitted in the case aforementioned by giving benefit of doubt and was not exonerated of the charge. Therefore, the plaintiff was rightly dealt with departmentally under the Punjab Police Rules, as per statement of Rashidan, which was given by her in the court of Additional Sessions Judge, Sangrur, during the course of trial of the criminal case. Suit of the plaintiff is time barred, as approved service of the plaintiff was forfeited vide order dated 28.4.2000. Appeal was rejected by the DIG and IGP, vide order dated 28.6.2000 and 8.10.2001, whereas, the suit has been filed at the end of 2006 and the same is barred by limitation.

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On completion of pleadings of the parties, the learned trial court framed the following issues :-

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“1. Whether the plaintiff is entitled to the relief of declaration as detailed in the head note of the plaint ? OPP.

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Whether the plaintiff has got no cause of action to file the present suit ? OPD.

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Whether this court has got no jurisdiction to try the present suit ? OPD.

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Whether the suit is not properly valued for the purpose of court fee and jurisdiction ? OPD.

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Relief.”

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In order to prove their respective stands taken, both the parties led

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Sahni Greesh 2014.06.12 12:32 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.1113 of 2013

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their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, the learned trial court came to the conclusion that the plaintiff has failed to prove his case. Consequently, the suit was dismissed vide impugned judgement and decree dated 20.10.2009. Plaintiff filed his first appeal, which also came to be dismissed by the learned Additional District Judge, Patiala, vide impugned judgement and decree dated 4.5.2012. Hence this second appeal, at the hands of the plaintiff.

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Learned counsel for the appellant submits that the plaintiffappellant was falsely implicated in a criminal case under Sections 363, 366-A and 376 IPC vide FIR No.18 dated 16.12.1997, registered at Police Station Malerkotla. Since the case was based on a concocted story, plaintiff was rightly acquitted by the learned trial court, vide judgement and decree dated 12.3.1999. He further submits that after the acquittal of the appellant in a criminal case, there was no justification in conducting a departmental enquiry against him on the same charge. The enquiry officer failed to follow the due procedure, while conducting the enquiry. Even the reply submitted by the appellant to the show cause notice was also not properly considered by the punishing authority before passing the impugned punishment order. Departmental appeal of the appellant was also illegally rejected, vide order dated 28.6.2000 by the Deputy Inspector General of Police, Patiala Range, Patiala. The second appeal was also dismissed by the Inspector General of Police, vide order dated 8.10.2001. Plaintiff moved a representation to the higher authorities, which was also rejected on 21.10.2004. Plaintiff further approached the Director General of Police, Punjab, but his representation was rejected, vide order dated 27.10.2005. Since the learned courts below failed to appreciate all the abovesaid material aspects of the matter, the impugned

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Sahni Greesh 2014.06.12 12:32 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.1113 of 2013 5

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judgements and decrees were not sustainable in law. In support of his contentions, he relies upon the following judgements :- Jagmohan Lal Vs. State of Punjab through Secretary to Punjab Govt. Irrigation and others, AIR 1967 Punjab and Haryana 422, Ghuam Nabi Baba Vs. State of J and K, AIR 1966 Jammu and Kashmir 27 and Bhupinderjit Singh Vs. State of Punjab , 2003(2) SCT 496. Learned counsel for the appellant next contended that statutory provisions contained in Rules 16.3 and 16.5 of the Punjab Police Rules, 1934 (`PPR' for short') were also violated by the respondent authorities, because of which the impugned judgements and decrees were not sustainable in law. He prays for setting aside the impugned judgements and decrees, by allowing the present appeal.

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Having heard the learned counsel for the appellant at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the contentions raised, this court is of the considered opinion that in view of the given fact situation of the present case, no interference is warranted at the hands of this court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure (`CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.

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Firstly, as per Rule 16.31 of the PPR 1934, once the appeal of an employee was dismissed by the Inspector General of Police, no further revision or representation was provided under statutory rules. Appeal of the plaintiff was dismissed by the Inspector General of Police, vide order dated 8.10.2001, as per his own pleaded case. However, plaintiff-appellant filed the present suit as late as in the year 2006 i.e. after about 5 years. The suit was for declaration, for which limitation was three years as per the provisions contained in Article 58 of the Limitation Act. There was no explanation forthcoming from the

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Sahni Greesh 2014.06.12 12:32 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.1113 of 2013 6

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plaintiff-appellant, as to how his suit was within limitation. While deciding issue no.1, the learned trial court rightly recorded a cogent finding that the suit of the plaintiff was hopelessly time barred. This finding recorded by the learned trial court was rightly upheld by the learned Additional District Judge, Patiala. Having said that, this court feels no hesitation to conclude that the learned courts below committed no error of law, while passing their respective impugned judgements and the same deserve to be upheld.

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Rules 16.3 and 16.5 of the PPR which are relevant, read as

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under :-

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“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 the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not, unless -

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(a) the criminal charge has failed on technical

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grounds; or

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(b) in the opinion of the Court or of the Superintendent of Police, the prosecution witnesses have been won over; or

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(c ) the Court has held in its judgement that an offence was actually committed and that suspicion rests upon the police officer concerned; or

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(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

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RSA No.1113 of 2013

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(e) additional evidence admissible under rule 16.25

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(1) in departmental proceedings is available.

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(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) Vol. I part I.”

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A bare combined reading of abovesaid statutory rules would show that there was no statutory bar to conduct the departmental enquiry against the appellant-plaintiff. So far as conducting of an enquiry was concerned, no illegality therein was pointed out by the learned counsel for the appellant. Clause 2 of Rule 16.5 provides for forfeiture of the approved service. The provisions are crystal clear and unambiguous, which needs no further elaboration. So far as the judgements relied upon by learned counsel for the appellant are concerned, there is no dispute about the law laid down therein. However, in view of the peculiar fact situation of the present case, the cited judgements are of no help to the appellant, being distinguishable on facts. It is settled proposition of law that peculiar facts of each case are to be examined, considered and appreciated first before applying any codified or judgemade law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533.

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Sahni Greesh 2014.06.12 12:32 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.1113 of 2013 8

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Before arriving at a judicious conclusion, the learned Additional District Judge, Patiala, recorded her own cogent findings in para 17 to 19 of the impugned judgement and the same read as under :-

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“ Thus, it is not to be seen if the provisions of Rule 16.3 would be applicable to the facts of the present case or not. In this regard, judgment of acquittal, passed by the learned Additional Sessions Judge, Sangrur, which has been proved as Ex.P.17 is of vital importance. Perusal of Ex.P.17 reveals that the witnesses of the prosecution i.e. Prosecutrix as well as the complainant in that case had not turned hostile and they had deposed against the plaintiff, who was accused in the criminal trial, but however, accused was acquitted by the learned Additional Sessions Judge, on the ground that the prosecution failed to bring home the guilt of the accused beyond shadow of reasonable doubt. It was solely on the score of benefit of doubt that the plaintiff had been acquitted of the charge levelled against him. However, the prosecutrix in the trial had also deposed against the plaintiff in verbatim with the version put forth by the prosecution and even she had been examined in the departmental inquiry. It is not in dispute that the standards of proof, required in recording of finding of conviction in a criminal case and in a departmental proceedings are distinct and different. Whereas, in a criminal case, it is essential to prove the charge beyond reasonable doubts but in departmental proceedings preponderance of probabilities would serve the

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Sahni Greesh 2014.06.12 12:32 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.1113 of 2013

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purpose. Thus, it is evident that in the criminal trial the prosecution version failed to pass through the aforesaid test of scrutiny and benefit of the same was extended to the accused and he was acquitted of the charge levelled against him. But, however, in a departmental proceedings since test of scrutiny is not that stringent considering the evidence brought on record the departmental proceedings were decided against the plaintiff. It is not well settled by a catena of judgements that if an employee has been acquitted of the criminal charge, the same by itself would not be a ground not to initiate departmental proceedings against him or to drop the same in the event order of acquittal is passed. Thus, looking at the nature and kind of relief granted by the criminal court to the plaintiff, initiation of departmental proceedings, as such, cannot be said to be wrongful act at the instance of the Police Department. Through, it is now submitted that it is a case of no evidence, but however, perusal of the charge sheet as well as the impugned orders reveals that proper evidence has been recorded. Even, prosecutrix has been examined during the course of inquiry and on appreciation of the material brought on record, impugned order had been passed. This court is not to sit as an Appellate Authority over the orders passed by the departmental authorities. In the case in hand, proper procedure has been followed, while conducting the inquiry, therefore, in these circumstances, the impugned order, as

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RSA No.1113 of 2013

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such, calls for no interference by way of filing of civil suit.

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Moreover, the impugned order was passed by the Senior Superintendent of Police, Sangrur on 28.4.2000 and the appeal was dismissed by DIG Patiala on 28.6.2000 and the appeal filed to the Inspector General of Police, Patiala was dismissed on 8.10.2001. Thereafter, the plaintiff had been filing various representations before the higher authorities. However, the present suit was filed on 1.12.2006. Rule 16.32 of Punjab Police Rules, provides that an employee, whose appeal has been dismissed by the Inspector General of Police, will not be entitled to any revision and he can only submit a plea for mercy or may apply to the I.G. for review of his appellate order, only in case fresh evidence is coming forth, but , however, such is not the plea taken in the present case and therefore, the present suit has been filed much beyond the prescribed period of three years and as such, is time barred.

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Faced with the aforesaid conclusion, learned counsel for the plaintiff has also submitted that there is no provision for forfeiture of service. However, the aforesaid submission is not tenable. Rule 16.5 of Chapter XVI of Punjab Police Rules, sub-clause (2) provides for the forfeiture of the approved service for increment temporarily or permanently and in view of this provision, now, it does not lie in the mouth of the learned counsel for the plaintiff/appellant that there is no provision for the punishment imposed upon the

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Sahni Greesh 2014.06.12 12:32 I attest to the accuracy and integrity of this document High Court, Chandigarh

RSA No.1113 of 2013

plaintiff.”

During the course of hearing, learned counsel for the appellant could not point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the judgements passed by the learned courts below. He also failed to put into service any substantive argument, so as to convince this court to take a different view than the one taken by the learned courts below. Further, no question of law, much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this court, while exercising its jurisdiction under Section 100 CPC. Thus, the impugned judgements and decrees deserve to be upheld for this reason, as well.

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No other argument was raised.

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Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.

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Resultantly, instant appeal stands dismissed, however, with no

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order as to costs.

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4.3.2014 (RAMESHWAR SINGH MALIK) GS JUDGE

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Sahni Greesh 2014.06.12 12:32 I attest to the accuracy and integrity of this document High Court, Chandigarh

Nazir Hussain v. State of Punjab and Anr.

Case brief

What is this about?

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Nazir Hussain v. State of Punjab and Anr.

Case brief

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