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CASE NO.: Appeal (civil)  3186 of 2008

PETITIONER: Man Singh

RESPONDENT: State of Haryana & Ors

DATE OF JUDGMENT: 01/05/2008

BENCH: S. B. Sinha & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO.  3186      OF 2008 [Arising out of SLP [C) No.19917 of 2006]

Lokeshwar Singh Panta, J.

Special leave granted.

2.      This appeal is directed against the judgment and order  dated 20.03.2006 passed by a learned Single Judge of the  High Court of Punjab and Haryana, Chandigarh, whereby and  whereunder Regular Second Appeal No.4272 of 2005 filed by  the appellant-plaintiff from the judgment and decree dated  01.09.2005 passed by the learned Additional District Judge,  Sonepat, in Civil Appeal No.21 of 2005, was dismissed.   3.      Facts, in brief, giving rise to the filing of this appeal are  that the appellant-plaintiff (hereinafter referred to as ’the  appellant’) was serving as Sub-Inspector in Police Department,  Rohtak.   In July 1996, the appellant was deputed as Incharge  of the police party comprising of ASI Sucha Singh, HC Suraj  Bhan and HC Vijay Pal for taking two Government vehicles  bearing Nos. HR 22 0020 and HR 03A 7880 respectively from  Chandigarh to Hyderabad (Andhra Pradesh) for repair and  fitting of Jammers.   HC Vijay Pal was driving one of the  vehicles.  He purchased 12 bottles of Indian-Made Foreign  Liquor [IMFL] at Kota (Rajasthan) and concealed the  consignment of the liquor in the dickey of the car without the  knowledge and consent of the appellant.  On checking of the  vehicles by the Excise Staff of Adilabad in the State of Andhra  Pradesh, 12 bottles of IMFL were recovered from the luggage  boot of the car being driven by HC Vijay Pal, which gave rise to  registration of a case PR No.470/95-96 dated 31.07.1996  against HC Vijay Pal for transporting liquor in violation of  prohibitory orders of the State Government.    4.      The Superintendent of Police, Sonepat, - respondent No.2  herein ordered a departmental inquiry against the appellant  and HC Vijay Pal charging the appellant with improper control  over his subordinates which amounts to dereliction of duties  and for the lapses of indiscipline as Police Officer.  The Inquiry  Officer found the appellant guilty of the charge on the basis of  summary of allegations and submitted his report to the  respondent No.2.  The respondent No.2, on receipt of the  inquiry report, issued show-cause notice dated 18.03.1997 to  the appellant calling upon him to show-cause why penalty of  dismissal from service be not imposed upon him.  The  appellant was directed to file his reply within 15 days from the

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receipt of the show-cause notice and in default thereof, final  order of the proposed penalty of dismissal from the service  would be passed against him.  The appellant, accordingly, filed  a detailed reply to the show-cause notice denying the  allegations of misconduct and dereliction of duties on his part.   He submitted that he has unblemished service record to his  credit and has never been found guilty of any acts of  omissions and commissions in discharging his duties during  his long service career of about 34 years in the Police  Department of the State.   5.      Respondent No.2, keeping in view the length of service  and unblemished record of service of the appellant, imposed  punishment of stoppage of two annual future increments with  permanent effect upon the appellant. 6.      The appellant filed statutory appeal dated 11.08.1999 to  the Deputy Inspector General of Police, Rohtak Range \026  respondent No.3 herein, under Rule 16.29 of the Punjab Police  Rules, 1934 against the order of respondent No.2.  The  Appellate Authority by an order dated 11.08.1999 rejected the  appeal of the appellant.   7.      The appellant preferred Revision Petition before the  Director General of Police, Haryana \026 respondent No.4 herein,  which came to be rejected by an order dated 15.06.2001. 8.      The appellant thereafter instituted suit inter alia praying  for declaration that the order of punishment dated 30.09.1997  passed by respondent No.2; order dated 11.08.1999 recorded  by respondent No.3 in appeal vide which the order of  punishment was upheld and the appeal of the appellant was  dismissed and order dated 15.06.2001 passed by respondent  No.4 upholding the orders of the authorities below being  illegal, null and void, arbitrary and against the rules of natural  justice with consequential relief of permanent injunction  restraining the respondents from implementing the order of  punishment to the detriment of the appellant.   9.      The learned Additional Civil Judge (Senior Division),  Sonepat, dismissed the Civil Suit No.571/1 of 2002 of the  appellant by the judgment and decree dated 21.03.2005. 10.     Being aggrieved against and dissatisfied with the  judgment and decree of the trial court, the appellant carried  the matter in appeal.  The learned Additional District Judge,  Sonepat, dismissed the said appeal on 01.09.2005. 11.     The appellant preferred Second Appeal in the High Court  of Punjab and Haryana, which was dismissed by learned  Single Judge by the impugned judgment dated 20.03.2006.   The relevant paragraphs of the judgment of the High Court are  extracted as under:- "Both the Courts below have concurrently  held that the order of punishment had  been passed against the plaintiff after the  due procedure had been followed by the  department in conformity with the rules  applicable to the plaintiff.  It has also  been held that principles of natural  justice were also adhered to.   Consequently, the suit filed by the  plaintiff was dismissed by the trial court.   The appeal filed by the plaintiff also failed  before the learned First Appellate Court.

It is well-settled that the Civil Court  cannot sit in appeal over the  departmental proceedings or an order of  punishment passed by the punishing  authority.

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Shri Jai Vir Yadav, learned counsel  appearing for the appellant has  vehemently argued that another employee  against whom the charges were primarily  reflected, had been exonerated.

I am afraid, the aforesaid argument of the  learned counsel cannot be accepted by  this Court sitting in second appeal.  As  noticed above, it is for the department to  find out the merits of the charges against  each of the delinquent officials.  Until and  unless some mala fides are alleged and  proved, the Civil Court has a very limited  jurisdiction.

Nothing has been shown that the findings  recorded by the Court below suffer from  any infirmity or are contrary to the  record.

No question of law, much less any  substantial question of law arises in the  present appeal.

Dismissed."

12.     Now, the appellant has preferred this appeal challenging  the correctness and validity of the judgment and order of the  High Court. 13.     We have heard Shri Kamal Mohan Gupta, learned  counsel for the appellant, and Shri Arvind Kumar Gupta,  Additional Advocate General for the respondents and perused  the entire material placed on record.  The facts narrated  hereinabove are not in dispute to the extent that the appellant  on 25.07.1996 was deputed as Incharge of police party  comprising ASI Sucha Singh, HC Vijay Pal and HC Suraj Bhan  to get technical repairs of two cars of the Government of  Haryana at Hyderabad.  On 31.07.1996 during the checking of  the vehicles in the jurisdiction of District Adilabad (A.P.) by the  Excise Staff of the Government of Andhra Pradesh, 12 bottles  of liquor were found in the staff car No. HR 22 0020 which, at  the relevant time, was being driven by HC Vijay Pal, against  whom a criminal case was registered by the Police in District  Adilabad.  The appellant and HC Vijay Pal were also dealt with  in departmental proceedings initiated against them under the  Punjab Police Rules.  The charge against the appellant was  that the appellant did not exercise proper control upon HC  Vijay Pal, driver of the official vehicle, when HC Vijay Pal was  apprehended by the Excise Staff of Andhra Pradesh for  concealing 12 bottles of liquor in the dickey of the official  vehicle of the State of Haryana.  In the departmental  proceedings, the Inquiry Officer held the appellant as well as  HC Vijay Pal guilty of misconduct, indiscipline and dereliction  of duties.  The disciplinary authority, on consideration of the  reply submitted by the appellant to the show-cause notice,  imposed punishment of stoppage of two annual future  increments with permanent effect upon the appellant.  The  appellate authority as well as the revisional authority both  have concurred with the disciplinary authority and accordingly  dismissed the appeal and revision respectively filed by the  appellant.   As noticed above, the trial court, the first Appellate  Court and the High Court in Second Appeal have concurrently  held that the Civil Court cannot sit in appeal over the  departmental proceedings or an order of punishment passed

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by the punishing authority.  The High Court dismissed the  appeal of the appellant without framing the substantial  questions of law which were raised in precise terms before it in  the Memorandum of Appeal. 14.     On perusal of the judgment of the court of first appeal,  we find that the first appellate court has practically recorded  identical reasoning and finding as stated by the trial court in  its judgment and decree whereunder the suit of the appellant  was dismissed.  It was urged on behalf of the appellant as  noticed by the first appellate court in paragraph 8 of the  judgment that the appellant was discriminated by the  respondents in dealing with the departmental punishment  recorded against him and against HC Vijay Pal whose  punishment was set aside by the appellate authority soon  after his acquittal by the criminal court in the Excise case,  whereas the appeal and revision filed by the appellant came to  be rejected simply on the ground that the appellant being in- charge of the police party had failed to take proper supervision  over the conduct of HC Vijay Pal who committed criminal  offence as a police personnel in discharging his official duties.   The first Appellate Court, after noticing the arguments of the  learned counsel for the parties, has not recorded any reason  for rejecting the pleas of the appellant and it dismissed the  appeal by observing as under:-  "The learned Lower Court has rightly  discussed the evidence and the various  rules.  The findings given under all the  issues are correct and the same stands  affirmed."

15.     Before this Court, the appellant has filed a copy of the  Memorandum of the Grounds of Appeal preferred by him  before the High Court.  In paragraph 4 of the grounds of  Second Appeal, the appellant contended as under:- "The learned courts below have  committed a patent illegality in not  considering the case in its right  perspective that the appellant was  discriminated in the matter of awarding  punishment.  The main accused namely  HC Inder Pal Singh (real name HC Vijay  Pal) against whom the FIR was registered  in Andhra Pradesh for being found in  possession of liquor in the dickey of the  car and he has also departmentally  proceeded against and was punished with  stoppage of two annual increments, but  on an appeal, his punishment was set  aside.  Thus, when no punishment was  awarded to the main accused, there is no  justification to sustain the proceedings  awarded to the appellant, who has been  inflicted the punishment simply on the  ground that he being incharge was  negligent in keeping control over his  subordinate."

16.      On reading the above-extracted judgment of the High  Court, it becomes clear that the High Court has not framed  the substantial questions of law as raised by the appellant  before it in terms of proviso to Section 100, sub-section (5) of  the Code of Civil Procedure and dismissed the Second Appeal  in slip shot manner without assigning any independent  reason.  17.     We have independently examined the entire material on

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record and find that the appellant had filed a detailed reply to  the show-cause notice dated 18.03.1997 and in support of his  defence, he filed statement of HC Vijay Pal dated 30.07.1996.   A copy of the said statement has been placed on record as  Annexure P-1, which reads as under:- "I, Vijay Pal Chaudhari S/o Madan Singh  R/o not legible, Tehsil Jaggar, Distt.  Rohtak Haryana states that he started  journey on Government duty from  Panchkula to Hyderabad on 25.07.96.  I  purchased [12] bottles of IML at "Quota  Rajasthan" for "personal consumption" as  I have to stay in Hyderabad for 15 days to  attend the Govt. work.  I purchased [12]  bottles of IML at the rate of Rs.80/- each  bottle.  I kept the above IML bottles in the  dickey of the car without the knowledge  of Man Singh.

The said 12 bottles of IML have been  recovered and seized by the Excise Officer  at prohibited excise check post \026 ICP  Bhorj on 30.07.96 at about 7.30 a.m.  I  am not aware about the implementation  of prohibition Act in the A.P. State.                                                                                       Sd/-                                  Vijay Pal Choudhari                                         30.07.96"

18.     In view of the factual backdrop and the above-stated  statement of HC Vijay Pal, we are of the opinion that the  respondents cannot be permitted to resort to selective  treatment to the appellant and HC Vijay Pal, who was involved  in criminal case besides departmental proceedings.  HC Vijay  Pal has been exonerated by the appellate authority mainly on  the ground of his acquittal in the criminal case, whereas in  departmental proceedings he has been found guilty by the  disciplinary authority and was awarded punishment for  serious misconduct committed by him as police personnel. 19.      We may reiterate the settled position of law for the  benefit of the administrative authorities that any act of the  repository of power whether legislative or administrative or  quasi-judicial is open to challenge if it is so arbitrary or  unreasonable that no fair minded authority could ever have  made it.  The concept of equality as enshrined in Article 14 of  the Constitution of India embraces the entire realm of State  action.  It would extend to an individual as well not only when  he is discriminated against in the matter of exercise of right,  but also in the matter of imposing liability upon him.  Equal is  to be treated equally even in the matter of executive or  administrative action.  As a matter of fact, the doctrine of  equality is now turned as a synonym of fairness in the concept  of justice and stands as the most accepted methodology of a  governmental action.  The administrative action is to be just  on the test of ’fair play’ and reasonableness.  We have,  therefore, examined the case of the appellant in the light of the  established doctrine of equality and fair play.  The principle is  the same, namely, that there should be no discrimination  between the appellant and HC Vijay Pal as regards the criteria  of punishment of similar nature in departmental proceedings.   The appellant and HC Vijay Pal were both similarly situated, in  fact, HC Vijay Pal was the real culprit who, besides  departmental proceedings, was an accused in the excise case  filed against him by the Excise Staff of Andhra Pradesh for

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violating the Excise Prohibition Orders operating in the State.   The appellate authority exonerated HC Vijay Pal mainly on the  ground of his acquittal by the criminal court in the Excise case  and after exoneration, he has been promoted to the higher  post, whereas the appeal and the revision filed by the  appellant against the order of punishment have been rejected  on technical ground that he has not exercised proper and  effective control over HC Vijay Pal at the time of commission of  the Excise offence by him in the State of Andhra Pradesh.  The  order of the disciplinary authority would reveal that for the  last about three decades the appellant has served the Police  Department of Haryana in different capacity with unblemished  record of service. 20.     In the backdrop of the above-mentioned facts and  circumstances of the case, we are of the view that the order of  the disciplinary authority imposing punishment upon the  appellant for exhibiting slackness in the discharge of duties  during his visit to Hyderabad when HC Vijay Pal was found  involved in Excise offence, as also the orders of the appellate  and revisional authorities confirming the said order are unfair,  arbitrary, unreasonable, unjustified and also against the  doctrine of equality.  The High Court has failed to appreciate  and consider the precise legal questions raised by the  appellant before it and dismissed the Second Appeal by  unreasoned judgment.  The judgment of the High Court,  therefore, confirming the judgments and decrees of the first  appellate court and that of the trial court is not sustainable.   The appellant deserves to be treated equally in the matter of  departmental punishment initiated against him for the acts of  omissions and commissions vis-‘-vis HC Vijay Pal, the driver  of the vehicle.   21.     However, in normal course we could have remitted the  case to the High Court for taking fresh decision, but we are of  the opinion that in a case of this nature, we should in exercise  of our extra-ordinary jurisdiction under Article 142 of the  Constitution of India decided the case on merits to avoid  further delay in deciding the Regular Second Appeal by the  High Court.   22.     In the result, for the above-said reasons and discussions,  the appeal is, accordingly, allowed.  The judgment dated  20.03.2006 of the High Court in RSA No. 4272 of 2005  confirming the judgments and decrees of the courts below  shall stand set aside.  Consequently, Civil Suit No. 571/1 of  2002 on the file of the Additional Civil Judge (Senior Division),  Sonepat, is decreed in terms of the relief sought for. 23.     In the facts and circumstances of the case, the parties  are left to bear their own costs.