Hemant Gupta, J.@mdashThe plaintiff is in appeal aggrieved against the judgment and decree dated 03.06.1996 passed by learned District Judge,
Karnal, in an appeal directed against the judgment and decree dated 05.12.1995 passed by learned Sub Judge 1st Class, Karnal, whereby his suit
for declaration challenging the order of punishment of stoppage of two annual increments with future effect and that he shall not be paid more than
suspension allowance for the suspension period w.e.f. 13.05.1991 to 24.04.1993 was dismissed. The plaintiff-appellant has claimed the following
substantial questions of law:
i) Whether the concurrence of the District Magistrate as required under Haryana Police Rules 16.38(1) & (2) is mandatory before initiating
departmental action if a police officer has committed a criminal offence in connection with his official relations with the public?
ii) Whether the case of appellant is squarely covered by the law laid down by the Hon''ble Supreme Court in the case of Union of India (UOI) Vs.
Ram Kishan,
iii) Whether great injustice has been done with the appellant?
2. The aforesaid questions of law raised from the fact that an FIR No. 267 dated 12.05.1991 for the offences under Sections 354, 324 and 506
read with Section 34 of Indian Penal Code (for short ''IPC'') was registered at Police Station Tilak Marg, New Delhi against the plaintiff. The
plaintiff was charge sheeted on the allegations on which the FIR was lodged vide charge-sheet dated 19.08.1991 that while posted as Escort
Guard of the Director General of Police, Haryana and while on tour, the appellant was said to have caught hold of two girls, who were returning
back to their home with their friends, with intention to outrage their modesty and asked them to accompany him to the cinema hall. In pursuance to
the charge-sheet, an enquiry officer was appointed and the enquiry officer had given his report on 07.04.1992 holding the appellant guilty of
misconduct. A show cause notice was issued to the appellant proposing stoppage of six annual increments. The notice could not be served as he
was reported to be absent from duty. Another show cause notice was issued to him proposing punishment of dismissal from service. Thereafter,
another show cause notice was issued to the appellant on 27.04.1993 called upon to explain his conduct. After giving an opportunity of hearing to
the appellant, the order of punishment of stoppage of two annual increments with permanent effect was passed by the Senior Superintendent of
Police on 25.05.1993. It is the said order and the order passed in appeal, which were challenged by the plaintiff-appellant in a civil suit before the
Court.
3. In the present appeal, the argument raised is that in terms of Rule 16.38 of the Punjab Police Rules as applicable to the State of Haryana, the
concurrence of the District Magistrate was required before initiating departmental action if a police officer has committed a criminal offence in
connection with his official relations with the public. The relevant Rule 16.38 reads as under:--
16.38. Criminal offices by police officers and strictures by courts - Procedure regarding.--(1) Where a preliminary enquiry or investigation into a
complaint alleging the commission by an enrolled police officer of a criminal offence in connection with his official relations with the public,
establishes a prima facie case, a judicial prosecution shall normally follow. Where, however, the Superintendent of Police proposes to proceed in
the case departmentally, the concurrence of the District Magistrate shall be obtained,
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4. A perusal of the above shows that Rule 16.38 contemplates that if after a preliminary enquiry or investigation, if an enrolled police officer is
prima facie established to be involved in a criminal offence, a judicial prosecution was normally follow but wherever, the Superintendent of Police
proposes to proceed departmentally, the concurrence of the District Magistrate shall be obtained.
5. It means that the concurrence of District Magistrate is required if instead of prosecuting criminally, the departmental proceedings are sought to
be initiated but in a situation, where criminal prosecution has already been initiated, the concurrence of District Magistrate is not necessary before
initiating departmental proceedings. In the present case, the criminal prosecution was already initiated though resulting into acquittal, therefore,
concurrence of District Magistrate was not required to be obtained to initiate departmental proceedings against the plaintiff-appellant. Thus, the
concurrence of the District Magistrate is not mandatory, where criminal offence has been initiated against a police official while initiating
departmental proceedings.
6. The reliance of the appellant on the judgment of Ram Kishan''s case (supra) is misconceived. In the aforesaid case, the departmental
proceedings were initiated though the complaint against the police officials disclosed criminal offence as well. No criminal proceedings were
initiated against the delinquent police officer. It was held that when investigation of a complaint establishes a prima facie criminal case, a judicial
prosecution shall normally follow. The matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be
recorded. Therefore, where the criminal prosecution has been launched in respect of conduct of a police official, the departmental proceedings
need not have the concurrence of the District Magistrate. The concurrence of the District Magistrate is necessary only if the criminal proceedings
are not launched against a police official. Thus, the judgment in Ram Kishan''s case (supra) is not applicable to the facts of the present case.
7. In Parkash Nath Saidha, Naib Tehsildar v. The Financial Commissioner (Revenue) 1972 SLR 601, the other judgment referred to by learned
counsel for the appellant, does not advance the argument raised. The Division Bench in the said case held that no one shall be punished twice for
the same matter and such principle is applicable even to departmental enquiries. In the said case, in an earlier enquiry, the officer was exonerated,
but again a fresh enquiry was initiated. Such judgment has no applicability in the facts of the present case. In fact, the appellant has been let off
quite lightly by imposing punishment of stoppage of two increments with cumulative effect, as the allegations against him are of outraging the
modesty of a woman. In view of the above, I do not find that any substantial question of law arises for consideration in the present second appeal.
The same is, thus, dismissed.