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Harbans Lal Nihal Chand Vs. Superintendent of Police, Karnal and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 404 of 1964
Judge
Reported inAIR1969P& H131
ActsConstitution of India - Article 311 and 311(2); Police Act, 1861 - Sections 7 and 12
AppellantHarbans Lal Nihal Chand
RespondentSuperintendent of Police, Karnal and ors.
Appellant Advocate Hans Raj Aggarwal, Adv.
Respondent Advocate Anand Sarup, Adv.-General and; Net Ram, Adv.
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....1. harbans lal petitioner, a permanent constable in the punjab police force. while officiating in the selection grade as assistant moharrir, police lines, karnal, was reverted to his time-scale by the order of the superintendent of police, karnal, dated october 26, 1960, (annexure 'h') on the ground that the 'could not perform the duty of naib moharrir in police line efficiently'. on january 30, 1961, the petitioner was sent up for trial under sections 468/420/470a/471/465. indian penal code, on the allegation that on may 18, 1960, he had made a forged entry at serial no. 33 in the daily diary of the police lines,karnal, to the effect that he had left for hissar with the police guard on may 18, 1960, and returned on may 22, 1960 and that on the basis of the said entry the petitioner got a.....
Judgment:

1. Harbans Lal Petitioner, a permanent constable in the Punjab Police Force. While officiating in the selection grade as Assistant Moharrir, Police Lines, Karnal, was reverted to his time-scale by the order of the Superintendent of Police, Karnal, dated October 26, 1960, (Annexure 'H') on the ground that the 'could not perform the duty of Naib Moharrir in Police Line efficiently'. On January 30, 1961, the Petitioner was sent up for trial under Sections 468/420/470A/471/465. Indian Penal Code, on the allegation that on May 18, 1960, he had made a forged entry at serial No. 33 in the daily diary of the Police Lines,Karnal, to the effect that he had left for Hissar with the police guard on May 18, 1960, and returned on May 22, 1960 and that on the basis of the said entry the petitioner got a T. A. Bill for Rs. 17.22 Paise sanctioned and actually received the amount of the bill on August 27, 1960, though in fact ha had not gone with the police guard in question at all. At the trial of the Criminal Case, the petitioner admitted having made the relevant entry in the daily diary, further admitted that he had not gone with the police guard on the relevant date and also admitted having drawn the disputed amount of the T. A. Bill but pleaded that having made the disputed entry he did not leave the Police Lines at the instance of Ram Lal Moharrir, though his name was included in the guard that was to leave for Hissar on that date. He also stated that he was ready to pay back the amount to the government. He denied the signature on the T. A. Bill. By this judgment, dated May 31, 1961, Shri R. K. Jain, Magistrate first Class. Karnal, acquitted the petitioner of the charges levelled against him by giving him the benefit of doubt. He found that the petitioner's name was in the relevant entry from the very start, that the petitioner did not accompany the guard or return with it, that the petitioner did receive the amount of Rs. 17.22 Paise on account of the T. A. bill for the period May 18, 1960, to May 22, 1960, but that the signature of the petitioner on the T. A. bill was not proved. He held that the signature of Harbans Lal had not been properly identified. Regarding the prayer of the prosecution to examine a handwriting expert, the Magistrate observed as follows-

'Further when the police had taken the signature of Harbans Lal accused in the presence of Shri B. K. Dewan, Magistrate it was the duty of the police to send the specimens to the Handwriting Expert for comparison as to whether the signatures of the accused (sic). The application on this issue when all the witnesses resiled was at a much belated stage and could not be entertained under S. 540-A, criminal Procedure Code, as it would have been nothing but to fill in the lacuna of the prosecution. I admit that none else would have dared to sigh this entry exhibit P. C. at point P. C/2 as the amount was to go to the constable whose T. A. was entered but since it has not been proved on record that this entry was actually signed by Harbans Lal accused and it was within his knowledge that it related to the T. A. for the period from, 18-5-1960 to 22-5-1960. Naturally, the lack of investigation on this point is to benefit the accused. It is thus clear that the second issue as to who signed the entry Exhibit P. C/2 is not proved beyond doubt that it was signed by Harbans Lal accused.'

A departmental enquiry was started against the petitioner. The summary of allegations (Annexure 'B;) served on the petitioner charging him with 'grave misconduct in the discharge of his duties as a Police Officer, highly unworthy, unbecoming of a member of a disciplinary force,' A formal charge-sheet (Annexure 'C'), dated October 30, 1961, charging the petitioner with outright dishonesty the grave misconduct, highly unworthy and unbecoming of a member of police force, was served on the petitioner. Shri Ulfat Rai, Prosecuting inspector of Police, Karnal, who had been appointed by the Superintendent of Police, Karnal, to hold an enquiry into the said charges, gave his report wherein he found the petitioner guilty of the charges framed against him and recommended that the petitioner may be suitably and appropriately punished. The punishing authority, that is, the superintendent of Police tentatively agreed with the report of the enquiry officer and thereupon served on the petitioner a formal show-cause notice (Annexure 'D') dated March 27, 1962 along with a copy of the findings of the enquiry officer. The superintendent of Police further stated in the notice that upon a careful consideration of the findings of the enquiry officer and in particular of the conclusions reached by him in respect of the charges framed against the petitioner, he (Superintendent of Police) was provisionally of the opinion that the penalty of dismissal should be inflicted on the petitioner. The show-cause notice was served on the petitioner by the superintendent of Police personally after calling the petitioner in his office and after hearing him, the petitioner was given an opportunity of showing cause against the action proposed to be taken and was asked to submit his representation in writing if any, within certain specified time. The petitioner submitted a written reply denying the allegations against him. After hearing the petitioner, the superintendent of police, by his detailed impugned order, dated June 1, 1962 (Annexure 'F'), believed the evidence against the petitioner, dealt with the technical points raised by him, held that the departmental enquiry against and petitioner had been correctly ordered and conducted in accordance with the procedure laid down in the police rules and instructions on the subject. He also recorded a finding to the effect that the petitioner had been given full opportunity to cross-examine the prosecution witnesses and to offer his defence. He further held that the guilt of the petitioner was fully and conclusively proved from the evidence on the record. He, therefore, directed the dismissal of the petitioner from the service with effect from June 1, 1962.

The petitioner's appeal, preferred to the deputy Inspector-General of police, Ambala Range, against his dismissal and his further revision, submitted to the Additional Inspector-General of police, against the first appellate order, were dismissed by the appellate authority and the revisional authority on October 23, 1962, and January 31, 1964, respectively (Annexures 'F'and 'G'). Thereupon, the present writ petition was field by Harbans Lal.

2. the Superintendent of police and the Deputy Inspector-General of police, Ambala Range have field their separate written statements. The petitioner has field a replication, in reply to which a further affidavit has been sworn by Shri Kanwar Randip Singh Deputy-Inspector-General of Police, Ambala Range.

3. Mr. Hans Raj Aggarwal learned counsel for the petitioner, while impugning the original and appellate orders of the dismissal of the petitioner, firstly urged that the petitioner having been departmentally punished on October 26, 1960 (Annexure 'H'), he could not be punished a second time on the same charge. This argument appears to be wholly misconceived. There is nothing at all to show that the order of petitioner's reversion (Annexure 'H') was passed by way of punishment. On the contrary, the order clearly shows that the reversion was directed as the petitioner was not found to be efficient enough to perform the duties of the selection grade post against which he was officiating. The argument of Mr, Aggarwal was that reversion simpliciter is always a punishment and even if it is from an officiating rank to a substantive one on account of a person being found unfit to officiate in the higher rank, the provisions of Article 311 of the construction are attracted. This contention of the counsel is exactly contrary to the law settled by their Lordship of the Supreme court in the Divisional Personnel Officer, Southern Railway V. S. Raghavendrachar, AIR 1966 S.C. 1529. Reversion from a post to which an incumbent has been provisionally promoted was held not to amount to reduction in rank. In state of Bombay V. F. A. Abraham, AIR 1962 S. C. 794, their Lordship of the Supreme court expressly refused to agree with the observations of the Nagpur High Court in M. A. Waheed V. State of Madhya Pradesh, AIR 1954 Nagpur 229, to the effect that when a person officiating in a post is reverted for unsatisfactory work, his reversion would amount to a reduction in rank. In Abraham's case AIR 1962 SC 794 the Supreme Court took the view that the Government had a right to consider the suitability of the official concerned to hold the post to which he had been appointed to officiate and that it was entitled for that purpose to make enquiries about his suitability. Nothing more appears to have happened to have happened in the instant case.

4. In the state of Punjab V. Appar Apar Singh letters patent Appeal No. 346 of 1965, decided on July 21, 1966=(AIR 1967 Punj 139), it was hied that unless the reduction is by way of punishment cannot be called into question because the provision s of Article 311(2) of the Constitution are not otherwise attracted. Following the law laid down by the supreme Court in F. A. Abraham's case, AIR 1962 SC 794 and the judgment of this Court in Appar Apar Singh's case, L. P. A. No. 346 of 1965, D/-21-7-1966=(AIR 1967 Punj 139), I hold that the order of the petitioner's reversion (Annexure 'H') was not by way of punishment and did not amount to 'reduction in rank' within the meaning of Article 311 of the Constitution. From this finding , it follows that the said administrative order of reversion on account of unfitness of the petitioner to hold the higher officiating post did not bar disciplinary proceedings against the petitioner for any misconduct or default in the officiating rank. As stated by the Superintendent of police in his return, the reversion was under police Rule 13.5 (4) and was in order.

5. The second argument advanced by Mr. Hans Raj Aggarwal was that the impugned disciplinary proceedings against the petitioner were barred by police Rule 16.3 as the petitioner had been acquitted by a competent Criminal court in his prosecution under the Penal Code, Police Rule 16.3 states -

'16.3 (1) when a Police officer has been tried and acquitted by a Criminal court the shall not be punished departmentally on the same charge or on different charge upon the evidence cited in the criminal case, whether actually led or not, unless-

(a) the criminal charge has failed on technical ground; 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 a available.

(2) * * * * *

* * * * *

* * * * *

Whereas it is clear that the petitioner was not punished departmentally 'on the same charge', I need not go into the question whether the different charge upon which he was punished, was based 'upon the evidence cited in the criminal case' or not, in view of the fact that I agree with the learned Advocate-General for the state of Haryana that this case falls within the category of cases excluded by clauses (a) (b) and (c) from the purview of sub-rule (1) of Rule 16.3. The case falls within clause (a) because the Deputy Inspector-General of police and the Additional Inspector-General of police correctly found that the Criminal court had acquitted the petitioner on a technical ground. In this connection, the Deputy Inspector-General of police (the appellate authority) held as follows-

'The provisions of police rule 16.3 in this respect have not been ignored. The criminal charge was held to have failed primarily because the investigating officer did not prove the handwriting of the defaulter by an expert evidence. I agree that this was an omission of a technical nature during the investigation, but all the same even the court has observed that it could be nobody else but the defaulter who could have committed the offence. The relevant observations of the Court are as follows-

'I admit that none else would have dared to sign this entry, Exhibit P. C., at point P. C./2 as the amount was to go to the constable whose T. A. bill was entered.'This observation of the court has established that the defaulter with dishonest intention drew the T. A. bill. Keeping this observation of Court in view the finding and the order of the Superintendent of police can be held fully justifiable.'

When the matter went up in revision to the Additional inspector General of police he held in this connection-

'This connection was also discussed in detail by the Deputy Inspector-General in his appellate order. There is no doubt that the revisionist was acquitted by the court but the Court while passing the order clearly mentioned as follows-'I admit that none else would have dared to sign this entry, Exhibit P. C. , at point P. C./2 as the amount was to go to the constable whose.T. A. was entered but since it has not been proved on record that this entry was actually signed by Harbans Lal accused and it was within his knowledge that it related to the T. A. for the period from 18-5-1960 to 22-5-1960. Naturally the lack of investigation on this point is to benefit the accused. It is thus clear that the second issue as to who signed the entry Exhibit P. C./2 is not proved beyond doubt that it was signed by Harbans Lal accused. In the light of my above discussion. I giving the benefit of doubt to Harbans Lal accused acquit him of the charge under sections 468/471A/420/477A.' In accordance with the provisions of police rule 16.3 the departmental enquiry was correctly held and there is no force, in this contention of the revisionist.'

It appears from the above-discussion on this point by the departmental authorities that the petitioner escaped conviction in the criminal proceedings merely because of a technical flaw in the investigation of the case.

6. The case would also fall under clause (b) if either the Court or the Superintendent of police was to be of the opinion that the prosecution witnesses had been won over. In this case the criminal court recorded a clear finding to the effect that 'all the witnesses resiled' which is , for all practical purposes, equal to stating that they had been won over The Superintendent of police has also stated in paragraph 6 (ii) of his return that according to his finding the petitioner had won over three material witnesses who had at the trial resiled from their statements under section 161 of the code of criminal Procedure. This is enough to bring the case squarely under clause (b). In any event, the criminal court impliedly held that the offence of cheating the Government of the amount in question had actually been committed and the passage in the judgment of the learned magistrate, already quoted above in the quotation from the orders of the departmental authorities., leaves no doubt in my mind that when the Magistrate stated that 'I admit that none else would have dared to sign this entry' while referring to the entry in the T. A. bill, he was proceeded to acquit the petitioner' it was merely because the said conviction in the mind of the magistrate was treated by him as not raising the status of the guilt of the petitioner, who was the police officer concerned, above suspicion. This brings the case within the exception contained in clause (c).

7. Mr. Hans Raj Aggarwal referred to the judgment of Shamsher Bahadur, J., in Amin Lal V. State of Punjab, 1965 cur LJ 509 (Punj) and argued that the petitioner having been acquitted by the Criminal Court could not be again tried departmentally. The state does not appear to have invoked the clauses (a) and (b) of the exception to the rule in Amin Lal's case, 1965 Cur LJ 509 (Punj). Only clauses (c) and (d) were invoked. On the facts of that case ,it was held by the learned Judge that the relevant observations in the judgment of the Criminal Court could not possibly lead to the inference that some suspicion still attached to the Police Official concerned. Similarly, it was held that clause (d) could not be invoked against the police official concerned. Each case depends in its own facts and the judgment of Shamsher Bahadur, J., in Amin Lal's case, 1965 Cur LJ 509 (Punj) (a short-note of which also appears in 1965 Pun LR (S. N.) 89) is of no avail to the petitioner.

8. the third submission of Mr, Aggarwal was that the impugned departmental proceedings were barred by police rule 16.38 (1), as immediate information of the commission of the offence was not given to the District Magistrate and the departmental proceedings were not conducted after obtaining a decision of the District magistrate permitting the same, rule 16.38 (1) reads-

'16.38 (1) Immediate information shall be given to the District magistrate of any complaint received by the Superintendent of police, which indicates the commission by a police Officer of a Criminal offence in connection with his official relation with the public. The District magistrate will decide whether the investigation of the complaint shall be conducted by a police Officer, or made over to a selected magistrate having is Class powers.'

I am in full agreement with the decision of the departmental authorities on this question to the effect that the protection of the above said rule cannot possibly be invoked by the petitioner on the short ground that the charges, on which the petitioner has been punished and indeed even the offences for which he was charged in the criminal case, had no 'connection with his official relations with the public'. A plain reading of the above-quoted rule would show that it has no application to a case of a criminal offence which has no connection with the official relations of the delinquent police official with the public.

9. The last submission of the learned Counsel for the petitioner was that Article 311(2) of the Constitution and principles of natural justice have been violated in this case inasmuch as -

(i)Prosecuting Inspector Ulfat Rai was not competent and only the Superintendent of police was competent under police rule 16.24 (2) to serve the charge-sheet on the petitioner;

(ii) the summary of allegations (Annexure 'B') was vague and did not comply with police rule 16.24 (1) inasmuch as the names of the witnesses and summary of the statements which the prosecution witnesses were expected to give, had not been detailed in the summary of allegations;

(iii) copies of statements of witnesses recorded during the preliminary enquiry had not been furnished to the petitioner; and

(iv) the Superintendent of police had issued the show-cause notice (Annexure 'D') merely on the report of the enquiry officer without applying his own mind to the matter.

In order to appreciate these points it is necessary to notice the following additional facts which have been proved in this case by the affidavit (written statement) of the Superintendent of police, Karnal, dated April 16, 1964-

(1) shri Ulfat Rai, the then Prosecuting Inspector of police. Karnal, had been appointed by shri M. L. Puri,, the then superintendent of police, Karnal, on July 29, 1961, to prepare the departmental file against the petitioner;

(2) At the time of his prosecution in the criminal Court, the petitioner has been supplied with copies of all the documents referred to in sub-section (4) of section 173 of the code of Criminal Procedure which, inter alia, included copies of statements of prosecution witnesses. The ,materiel witnesses examination in the departmental enquiry were the same persons who had been the prosecution witnesses in the trial of the criminal case;

(3) The petitioner never made any request for supply of copies of statements of witnesses recorded during the preliminary enquiry;

(4) The superintendent of police, Karnal, after consideration of the findings and the conclusions reached by the enquiry officer was provisionally of the opinion that penalty of dismissal should be inflicted on the petitioner. The Superintendent of police had applied his mind to the merits of the facts before issuing the notice;

(5) The petitioner was called twice by the Superintendent of police, Karnal in his presence once on march 27, 1962, when the show-cause notice (Annexure 'D') was served on him and again on May 17, 1962 to show-cause against the proposed penalty; and

(6) Before passing the final order of dismissal the show-cause notice (Annexure 'D') was duly served on the petitioner and his representation there-against was taken into consideration by the superintendent of police, Karnal.

Police rule 16.24 may at this stage be set out-

'16.24 (1) The following procedure shall be followed in departmental enquiries-

(i) The Police Officer accused of misconduct shall be brought before an officer empowered to punish him, or such superior officer as the superintendent officer as the Superintendent may direct to conduct the enquiry. That officer shall record and read out to the accused officer a statement summarizing the alleged misconduct in such a way as to give full notice of the circumstances in regard to which evidence is to be recorded. A copy of the statement will also be supplied to the accused officer free of charge.

(ii) If the accused Police Officer at this stage admits the misconduct alleged against him, the officer conducting the enquiry may proceed forthwith to frame a charge, record the accused officer's plea and any statement he may wish to make in extenuation and to record a final order, it it is within his power to do so, or a finding mto be forwarded to an officer empowered to decide the case. When the allegations are such as can form the basis of a criminal charge, the Superintendent shall decide at this stage, whether the accused shall be tried departmentally first and judicially thereafter.

(iii) If the accused police officer does not admit the misconduct, the officer conducting the enquiry shall proceed to record such evidence, oral and documentary in proof of the accusation, as is available and necessary to support the charge. Whenever possible witnesses shall be examined direct and in the presence of the accused, who shall be given opportunity to take notes of their statements and cross-examine them. The officer conducting the enquiry is empowered however, to bring on to the record the statement of any witnesses whose presence cannot, in the opinion of such officer, be procured without undue delay and expense or inconvenience, if he considers such statement necessary, and provided that it has been recorded and attested by a Police Officer or by a Magistrate, and is signed by the person making it. This statement shall also be read out to the accused officer and he shall be given an opportunity to take notes. The accused shall be bound to answer any question which the enquiring officer may see fit to put to him with a view to elucidating the facts referred to in statements or documents brought on the record as herein provided.

(iv) when the evidence in support of the allegations has been recorded the enquiring officer shall, (a) if he considers that such allegations are not substantiated, either discharge the accused himself, if he is empowered to punish him, or recommend his discharge to the superintendent, or other officer, who may be so empowered, or (b) proceed to frame a formal charge or charges inn writing explain them to the accused officer and call upon him to answer them.

(V) The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time, in no case exceeding forty-eight hours, to prepare a list of such witnesses, together with a summary of the facts as to which they will testify. The enquiring officer shall be empowered to refuse to hear any witnesses whose evidence he considers will be irrelevant or unnecessary in regard to the specific charge framed. He shall record the statements of those defence witnesses whom he decides to admit in the presence of the accused, who shall ne allowed to address questions to them, the answers to which shall be recorded; provided that the inquiring officer may cause to be recorded by any other Police Officer superior in rank to the accused the statement of any such witness whose presence cannot be secured without undue delay of inconvenience, and may bring such statements on to the record. The accused may file documentary evidence and may for this purpose be allowed access to such files and papers, except such as form part of the record of the confidential office of the superintendent of Police, as the enquiring officer deems fit. The supply of copies of documents to the accused shall be subject to the ordinary rules regarding copying fees.

(vi) At the conclusion of the defence evidence or, if the enquiring officer so directs, at any earlier stage following the framing of a charge, the accused shall be required to state his own answer to the charge. He may be permitted to file a written statement and may be given time, not exceeding one week, for its preparation, but shall be bound make an oral statement in answer to all questions which the enquiring officer may see fit to put to him, arising out of the charge, the recorded evidence, or his own written statement.

(vii) The enquiring officer shall proceed to pass orders of acquittal or punishment, if empowered to do so, or to forward the case with his finding and recommendations to an officer having the necessary powers. Whenever the officer passing the orders of punishment proposes to take into consideration the adverse entries on the previous record of the accused Police officer, he shall provide reasonable opportunity to the defaulter to defend himself; and a copy or at least a gist of those entries shall be conveyed to the defaulter and he shall be asked to give such explanation as he any deem fit. The explanation furnished by the defaulter shall be taken into account by the officer before passing orders in the case.

(viii) Nothing in the foregoing rule shall debar a superintendent of Police from making or causing to be made a preliminary investigation into the conduct of a suspected officer. Such an enquiry is not infrequently necessary to ascertain the nature and degree of misconduct which is to be formally enquired into. The suspected police officer may or may not be present at such preliminary enquiry, as ordered by the Superintendent of Police or other gazetted officer initiating the investigation, but shall not cross-examine witnesses. The file of such a preliminary investigation shall form not part of the formal departmental record, but statements therefrom may be brought to the formal record when the witnesses are no longer available in the circumstances detailed in clause (iii) above. All statements recorded during a preliminary investigation should be signed by the person making them and attested by the officer recording them.

(ix) No order of dismissal or reduction in rank shall be passed by an officer empowered to dismiss a Police Officer or reduce him in rank until that officer has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, provided that this shall not apply-

(a) where a police officer is dismissed or reduced in rank on the ground of conduct which led to his conviction on a [V1]criminal charge; or

(b) where the officer empowered to dismiss him to reduce him in rank is satisfied that for some reason to be recorded by that officer in writing, it is not reasonably practicable to give to that police officer an opportunity of showing cause.

Before an order of dismissal or reduction in rank is passed, the officer to be punished shall be produced before the officer empowered to punish him, and shall be informed of the charges proved against him, and called upon to show cause why an order of dismissal or reduction in rank should not be passed. Any representation that he may make shall be recorded, shall form part of the record of the case, and shall be taken into consideration by the officer empowered to punish him before the final order is passed.

Provided that if, owing to the complicated nature of the case or other sufficient reason to be recorded, the officer empowered to impose the punishment considers this procedure inappropriate, he may inform the officer to be punished in writing of the charges proved against him, and call upon him to show cause in writing why an order of dismissal or reduction in rank should not be passed.. Any written representation received shall be placed on the record of the case and taken into consideration before the final order is passed.

(2) (I) Notwithstanding anything contained in sub-rule (1) a Superintendent of police or any officer of rank higher than Superintendent may institute, or cause to be instituted, ex - parte proceedings in any case in which he is satisfied that the defaulter cannot be found or that in spite of notice to attend the defaulter is deliberately evading service or refusing to attend without due cause.

(ii) The procedure in such ex -parte proceedings shall, as far as possible, conform to the procedure laid down in sub-rule (1);

Provided to have admitted the allegations contained in the summary of misconduct, and

(b) to have entered a plea of not guilty to the charge;

Provided further that the defaulter, if he subsequently appears at any stage during the course of the proceedings shall not be entitled to claim de novo proceedings or to recall for cross-examination any witness whose evidence has already been recorded. He shall, however, be fully informed of the evidence which has led against him and shall be permitted o take notes thereof,. He shall also be furnished with a copy of the summary of misconduct and of the charge or charges framed.'

Regarding the first objection of the petitioner against the departmental enquiry it is noteworthy that the petitioner has not been able to point out any statutory rule requiring the superintendent of police to serve the charge-sheet personally on a delinquent police constable. In paragraph 6 (v) of the writ petition reliance has been placed on police Rule 16.24 (ii) in support of the petitioner's contention to the effect that the superintendent of police alone was competent to charge-sheet the petitioner. The argument appears to be misconceived. Clause (ii)sub-rule (1) of police rule 16.24 applies only to a case where the accused police officer 'admits the misconduct alleged against him.' The petitioner admittedly never adopted that course. It is clause (iii) of sub-rule (1) of Rule 16.24 which applies to the petitioner, as he did not admit the misconduct alleged against him. In such an eventuality it is 'the officer conducting the enquiry' who is to proceed to record evidence in proof of the accusation and then to proceed under clause (iv), that is (a) if he considers that the allegations against the accused police official are not substantiated, to discharge him or recommend his discharge to the Superintendent, or (b) proceed to frame a formal charge or charges in writing explain them to the accused police officer and call upon him to answer them. Since the Prosecuting Inspector Ulfat Rai had been duly appointed by the then superintendent of police, Karnal as ' the officer conducting the enquiry', he was the only competent person under clause (iv) of sub-rule (1) of police rule 16.24 to frame a formal charge or charges in writing against the petitioner. It is admitted that Prosecuting, Inspector Ilfat Rai was the enquiry officer. The charge-sheet (Annexure 'C'), dated October 30, 1961, and the summary of allegations (Annexure 'B') were drawn by him. I am therefore, unable to find any irregularity in this procedure.

10. Nor have I been able to find any force in the second point urged by Mr. Aggarwal to the effect that the summary of allegations did not fulfil the requirements of clause (I) of sub-rule (1) of police Rule 16.24 as the names of the witnesses and summary of statements which those witnesses were expected to make had not been detailed therein. No law has been cited before me which requires any such thing to be done. The summary of allegations (Annexure'B') contains a faithful account of the allegations against the petitioner into which the enquiry had to be conducted, and contains the requisite detail including (I) the name and particulars of Head constable Ram Jas. under whom the police guard had to escort the prisoners to the Borstal Jail, Hissar, on may 18, 1960. (ii) particulars of the relevant entries in the daily diary, (iii) particulars of the T. A. bill and of Constable Jaguar Singh who had prepared the bill. (iv) particulars of Head constable Gobind Lal, Bill clerk, who had checked the T. A. bill, (v) particulars and names of the constables, for giving reference to the departure and return reports, whose bills had been returned, and (vi) other material information. In the circumstances of this case nothing more could conceivably be required 'to give full notice of the circumstances in regard to which the evidence was to be recorded 'by the enquiry officer. The procedure adopted was in entire conformity with police Rule 16.24 (1).

11. The third point pressed in behalf of the petitioner is equally devoid of merit for more than one reason. The summary of allegations as well as the facts stated in the returns filed by the respondents show that the witnesses examined against the petitioner in the departmental enquiry were the same as had been examined earlier at the criminal trial. The petitioner does not dispute that he was already in possession of the statements given by those witnesses during the criminal investigation as well as the statements given by them at the trial of the case. The argument of the learned counsel for the respondents has been that in spite of this fact if the petitioner had again asked for another set of copies of statements given by the witnesses in proceedings under section 161 of the Code of criminal procedure, they would have had no hesitation in supplying the same.. The averment of the Superintendent of police (reproduced in an earlier part of this judgment) regarding the petitioner never having asked for copies of the statements of the witnesses has not been denied by the petitioner in his replication. On these facts counsel cannot derive any benefit from the law laid down by their Lordships of the Supreme Court in Khem Chand V. Union of India AIR 1958 SC 300. Or state of Madhya Pradesh V. Chintaman Sadashiva Waishampayan . AIR1961 SC 1623. Counsel then referred to the judgment of the supreme court in Tirlok Nath V. Union of India, 1967 SLR 759 (SC) and argued that the enquiry held without the supply of copies of statements should be regarded as the one in violation nor only of Rule 55 of the Civil services (classification , control and Appeal) Rules, 1930 but also of Article 311(2) of the Constitution. I do not think it has ever been laid down by the supreme court or by any other court that if a delinquent Government Official does not dispute that he already had the requisite copies of statements of witnesses to be examined in the departmental enquiry and does not ask for another set of them, any law or rule requires or envisages the necessity of the department supplying such official another set of those very copies.

In this view of the matter, it is unnecessary to decide whether the Civil services (classification, control and Appeal) rules 1930 have any application to the petitioner, though I am inclined to think prima facie that those rules do not apply to constables employed in the Punjab police. The 1930 Rules apply to the Central government servants, as is apparent from Rule 3 thereof. The police rules. Which contain Rule 16.24 have been framed under sections 7 and 12 of the police act, the material part of which is in the following terms-

'7 subject to the provisions of Article 311 of the constitution and to such rules as the state government may from time to time make under this Act, the Inspector-General, Deputy Inspector-General, Assistant Inspectors-General and district Superintendents of police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duties or unfit for the same;

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12. The Inspector-General of police may, from time, subject to the approval of the State government frame such orders and rules as he shall deem expedient relative to the organisation classification and distribution of the police force, the places at which the members of the force shall reside, and the particular services to be performed by them; their inspection, the description of arms, accoutrements and other necessaries to be furnished to them; the collecting and communications by them of intelligence and information, and all such other orders and Rules relative to the Police force as the inspector General shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for tendering such force efficient in the discharge to its duties.'

The rules framed under the above-said provisions of the Police act, 1861, are not only subject to Article 311 of the Constitution, bit also subject to such rules as the State Government may, from time to time, make . corresponding to 1930 Central rules, the state Government has framed the Punjab civil services (punishment and Appeal) rules, 1952. Rule 7 of the said Punjab rules correspondents to Rule 55 of the Central rules (Police rule 16.24 appears to me to envelop the requirements of Article 311 of the Constitution as well as the material requirements of Rule 7 of 1952 Punjab rules. On the facts of this case, none of the relevant rules, or even the ordinary have been violated in the disciplinary proceedings conducted against the petitioner in spite of the non-supply of the copies of the statements of the prosecution witnesses.

13. In giving a decision about the last submission of Mr, Aggarwal I have to prefer the affidavit of the superintendent of police read with the relevant part of the show-cause notice itself (Annexure 'D') to the effect that the petitioner had been called by the superintendent of police personally on March 27, 1962. After he had considered the report and findings of the enquiry officer and me to a major penalty on the petitioner and I cannot possibly believe the impression of the petitioner to the effect that the Superintendent of police did not at all apply his mind to the matter,

14. No other point having been urged in this case, the writ petition fails and is dismissed with costs.

15. Petition dismissed.


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