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2023 Supreme(HP) 99
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Ajay Mohan Goel, J.
Sandeep Kumar - Petitioner
Vs.
State of H.P. & others - Respondents
CWPOA No.3114 of 2020
Decided On : 16-03-2023
For the Petitioner:Mr. Pritam Singh Chandel, Advocate.
For the Respondents:M/s Jitender Sharma, Tejasvi Sharma, Baldev Negi, Pushpinder Jaswal, Additional Advocates General, with Mr. Gautam Sood, Deputy Advocate General.
Point of Law: It is settled law that pendency of trial is no bar in either initiating or continuing with and concluding a departmental proceeding.
Headnote:
Indian Penal Code, 1860 - Section 306 - Punjab Police Rules - Rule 16.24 - Departmental inquiry - Misconduct and tarnishing image of Police Department - Penalty - Prayed that impugned show cause notice may kindly be quashed and set aside – As departmental inquiry is concerned, it is settled law that whereas under criminal jurisprudence, prosecution has to prove its case beyond reasonable doubt. (Para 7)
Finding of the Court: Prosecution has to prove its case beyond reasonable doubt against accused and accused gets benefit of doubt, in departmental proceedings, it is preponderance of probability which governs field and if employer is of view that there is a probability that employee is guilty of offence alleged against him/her then employer is at liberty to take such action against employee as is permissible in law - Not only this, it is also settled law that pendency of trial is no bar in either initiating or continuing with and concluding a departmental proceeding - At this stage, Court cannot presume that authority will pass an order against petitioner - Therefore, as present petition apparently is premature.
Result: Petition dismissed.
JUDGMENT :
Ajay Mohan Goel, J.
By way of the present writ petition, the petitioner has prayed for the following relief:
“i) That the impugned show cause notice No.OSI/17259 dated 21.08.2017 (Annexure A4) may kindly be quashed and set aside.”
2. The case of the petitioner is that at the time when he approached the Court, he was serving as a Constable in 3rd Indian Reserve Battalion, Pandoh, District Mandi, H.P. FIR No.16 of 2017, dated 20.01.2017, was registered against him under Section 306 of the Indian Penal Code. After lodging of the FIR, the petitioner was arrested, but subsequently he was released on bail. After the submission of the final report by the Investigating Officer, charges stood framed against the petitioner and the trial is still going on. The grievance of the petitioner is that despite the fact that the trial is still under way, yet in terms of Annexure A2, a Charge Sheet was served upon the petitioner by the Department, foundation of which that the FIR registered against the petitioner under Section 306 of the Indian Penal Code referred to hereinabove and he was called upon to show cause as to why appropriate disciplinary action be not taken against him as a result of lodging of the said FIR. Reply to the same was filed by the petitioner, yet a show cause notice dated 21082017 was issued to the petitioner, in terms whereof, the petitioner was called upon to show cause as to why a penalty of “forfeiture of five years of service permanently” be not imposed upon him for his act of misconduct, moral turpitude and for tarnishing the image of the Police Department, as stood established in the departmental inquiry.
3. Learned counsel for the petitioner has argued that the show cause notice which has been issued to the petitioner is totally uncalledfor, for the reason that as the criminal trial is still pending adjudication and further as the petitioner has the right to be presumed innocent till proved guilty, the Department ought to have waited for the outcome of the trial before issuing the said show cause notice. Accordingly, he submitted that the present petition be allowed and the show cause notice be quashed and set aside.
4. The petition is resisted by the State and in terms of the reply filed, it has been averred therein that after the lodging of the FIR against the petitioner, he was arrested and when the Department came to know about the factum of arrest of the petitioner, he was placed under suspension and a departmental inquiry was initiated against him for his misconduct and also for tarnishing the image of the Police Department being a member of the disciplinary force.
5. Learned Additional Advocate General by relying upon the contents of the reply has argued that a departmental inquiry was held by the Department which was entrusted to an officer of the rank of Deputy Superintendent of Police, in which the petitioner was also duly associated. Learned Additional Advocate General has submitted that this inquiry was conducted in terms of the procedure laid down in Rule 16.24 of the Punjab Police Rules as is applicable to the State of Himachal Pradesh. Due opportunity was afforded to the petitioner to putforth his case and after the inquiry report was received from the Inquiry Officer, show cause notice was issued as per the procedure, taking into consideration the contents of the report. Learned Additional Advocate General also argued that it is settled law that pendency of trial is not a bar to hold a departmental inquiry and therefore also, the present writ petition is not maintainable as petitioner otherwise also cannot invoke the extra ordinarily jurisdiction of this Court against a show cause notice and it is only after final order is passed by the Disciplinary Authority that the petitioner can invoke the jurisdiction of this Court and that too after exhausting such statutory remedy as may be available.
6. I have heard learned counsel for the parties and have also gone through the pleadings as well
