Rajinder Kumar v. State Of Punjab And Others
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH Date of decision : 24.05.2023 Rajinder Kumar ....Petitioner
Versus
State of Punjab and others ....Respondents
CORAM:
HON'BLE MR. JUSTICE PANKAJ JAIN Present :
Mr. Anupam Bhardwaj, Advocate for the petitioner.
Mr. I.P.S. Kang, Asstt. Advocate General, Punjab. PANKAJ JAIN, J. (ORAL) Petitioner is aggrieved of the order dated 30th of March, 2015 passed by respondent No.5, order dated 6th of November, 2015/13th of November, 2015 passed by respondent No.4, order dated 24th of June, 2019/27th of June, 2019 passed by respondent No.3, and that dated 1st of January, 2020 passed by respondent No.5.
2.
The petitioner who was working as Constable with the respondent/Police Department was booked in FIR No.93 dated 12th of July, 2009 registered for offence punishable under Section 27/54/59 of the Arms Act and Section 336 of the IPC. On trial the petitioner was initially acquitted vide judgment dated 11th of August, 2014. However, he was convicted by the Appellate Court vide judgment dated 7th of March, 2015 and was sentenced to undergo R.I. for 3 years qua offence punishable under
Section 27 of Arms Act and for 2 months for offence punishable under Section 336 IPC. Owing to his conviction the petitioner was ordered to be dismissed from services vide order dated 30th of March, 2015. Petitioner thereafter preferred appeal against the order of dismissal and further revisions which also stand dismissed vide impugned orders. In the interregnum the revision preferred by the petitioner against judgment of conviction i.e. CRR No.972 of 2015 came up for consideration before this Hon'ble Court. This Court vide order dated 4th of July, 2019 maintained the conviction of the petitioner but released him on probation. 3.
The impugned order of dismissal and further orders in statutory appeal/revisions have been assailed by counsel representing the petitioner claiming that the same have been passed merely on the basis of conviction and the same are not speaking orders.
4.
Per contra, State Counsel submits that the petitioner though released on probation is a convict. There are serious allegations against him. Thus the Disciplinary as well as Higher Authorities have rightly held punishment of dismissal to be appropriate. He thus submits that no fault can be found with the impugned orders and the writ petition deserves to be set aside.
5.
Having heard counsel for the parties and after going through records of the case the question that needs to be adjudicated by this Court is "whether the petitioner has been dismissed rightly or not?' 6.
Relevant provisions of the law read as under :
Article 311 of the Constitution of India, 1950
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Rule 16.2 of the Punjab Police Rules, 1934 . /
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The question w.r.t. grant of opportunity of hearing to a convict is no more res integra and has been answered by Supreme Court in the case of Union of India vs. Tulsiram Patel, (1985) 3 SCC 398 as under : "127. Not much remains to be said about clause (a) of the second proviso to Article 311(2). To recapitulate briefly, where a disciplinary authority comes to know that a Government servant
has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan's case. This, however, has to be done by it ex parte and by itself. Once the disciplinary authority reaches the conclusion that the Government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned Government servant by reason of the exclusionary effect of the second proviso.
The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned Government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A Government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the Government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review.
If he fails in all the departmental remedies and still wants to pursue the matter, he can invoke the court's power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that 268 particular Government service the court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India and another, 1985(2) RCR (Criminal) 117 : [1985] 2 S.C.C.
this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the Court should always order reinstatement. The Court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case."
8.
In view of afore-stated proposition of law, no fault can be found with the impugned order(s) on procedural issues. 9.
Coming on to the question:"whether the punishment awarded to the petitioner is disproportionate or not?", it will be apt to peruse the allegations against the petitioner. The petitioner was posted at Battalion Headquarter, Amritsar. On 12th of July, 2009 he was sent for handing over pistol glock No.17 body No. EWY-689 cartridge 30, magazine-2, filler magazine-1, cleaning rod brush along with pistol box issued vide road certificate No.33/09 to Inspector Sukhdev Singh, Company Commander. Departure report of the petitioner was recorded in roznamcha of the battalion Head Quarter with the direction that he will be responsible to report back within one hour at batallion Head Quarter after handing over the same pistol and ammunition to the Inspector Sukhdev Singh, Company Commander. The petitioner failed to report along with the pistol and ammunition. It was discovered that the petitioner fired three shots in public with the same pistol in drunken condition near Bus Stand, Amritsar.This led to registration of FIR. The allegations against the petitioner are of having
misused the pistol entrusted by the department to him for delivery at a destination. The petitioner misused the same by firing under influence of liquor. The question w.r.t. release on probation also stands laid to rest by the Supreme Court in the case of Harichand vs. Director of Social Education, (1998) 2 SCC 383 holding as under : .4
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3 10.
In view of afore-stated settled law and the fact of the present case, mere fact that the petitioner has been released on probation cannot be read to hold punishment bad. Further this Court does not find that the 'punishment of dismissal' awarded to the petitioner can be said to be disproportionate to the misconduct alleged against the petitioner. Resultantly, the present writ petition is ordered to be dismissed. May 24, 2023 (Pankaj Jain) Dpr Judge Whether speaking/reasoned :
Yes/No Whether reportable :
Yes/No