Madhya Pradesh High Court
The State Of Madhya Pradesh Thr vs Satyendra Singh Bhadoriya on 3 August, 2017
Bench: Sanjay Yadav, S.K. Awasthi
1 WA.227.2017
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE S.K. AWASTHI
WRIT APPEAL No.227 OF 2017
State of M.P. and others
Vs.
Satyendra Singh Bhadoriya
******************
Shri Praveen Newaskar, learned Government Advocate, for
the appellants/State.
Shri Arun Katare, learned counsel for the respondent.
********************
Whether approved for reporting : Yes/No
ORDER
(03/08/2017) Per Justice Sanjay Yadav:
Exception to order dated 22.07.2016 passed in Writ Petition No.4672/2015 is taken at by the State of Madhya Pradesh and its functionaries whereby the decision by the Director General of Police in purported exercise of his revisional powers under Madhya Pradesh Police Regulation 270(4) inflicting the penalty of stopping of one annual increment with cumulative effect has been found fault with on the findings that it was beyond the jurisdiction of Authority to have exercised suo motu revisional power after the expiry of six months.
(2) Relevant facts briefly are that the petitioner who is Assistant Sub-Inspector in the Police Department was proceeded against in a departmental enquiry wherein he was inflicted with the penalty of one annual increment
2 WA.227.2017 without cumulative effect by order dated 11.09.2014. The petitioner was issued a show cause notice on 13.05.2015 by the Director General of Police calling upon the petitioner as to why the punishment be not enhanced. The show cause notice evidently was in purported exercise of power under Madhya Pradesh Police Regulation 270 which envisages:
270. (1) Every order of punishment or exoneration whether original or appellate shall be liable to revision suo-motu by any authority superior to the authority making the order.
(2) Every appellate order by a final appellate authority shall be liable to revision by such final appellate authority on application made in that behalf by the person against whom the order has been passed.
Explanation:- For the purpose of of this clause the expression "final appellate authority" means the final authority empowered to hear an appeal under Police Regulation 262.
(3) The provisions of Regulation 266,267,268 and 271 shall be as nearly as may be apply to an application for revision.
(4) The revising authority may for reason to be recorded in writing exonerate or may remit vary of enhance the punishment imposed or may order a fresh enquiry of the taking of further evidence in the case:
Provided that it shall not vary or reverse any order unless notice has been served on the parties interested and opportunity given to them for being heard.
(3) The Revisional Authority overruling the objection against the show cause being barred by time enhanced the punishment from non-cumulative to cumulative i.e. from minor penalty to major penalty by order dated 17/08/2015. (4) The order dated 17/08/2015 on being questioned has been set aside by learned Single Judge on the following findings:
"From perusal of the record, it is clear that after issuance of order dated 17/8/2015 (Annexure P/8) which has been brought on record by the counsel for the petitioner by way of amendment in the writ 3 WA.227.2017 petition, and same is duly replied by the State in additional return. Similarly, Rule 29 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 provides the limitation for review as six months. The Division Bench of this Court and Coordinate Bench of this Court has already taken a view in respect of prescription of limitation for enhancement of penalty under reviewing authority. Thus, there is no case made out by the respondents/State to differ from the said stand. Thus, petitioner succeeds and the petition of the petitioner is allowed. Impugned show cause notice dated 13/5/2015 (Annexure P/1) and order dated 17.08.2015 (Annexure P/8) are hereby quashed."
(5) It is contended on behalf of the State of Madhya Pradesh and its functionaries that the petitioner being an Assistant Sub-Inspector of Police, a Class III non-ministerial post in Police Department, the applicability of M.P. Civil Services (Classification, Control and Appeal) Rules 1966 being expressly barred, the Writ Court patently erred in relying on the provisions thereof. It is urged that since Rule 29 of Rules 1966 was not applicable and there being no limitation prescribed for exercise of power under Regulation 270(4) of M.P. Police Regulation, it was well within the jurisdiction of the Revisional Authority to have reviewed and revised the punishment after affording an opportunity of hearing. Appellants have placed reliance on the decision by co-ordinate Bench in Arun Prakash Yadav Vs. State of M.P. and others [2013(3) MPLJ 508] and Ramswaroop Pandre Vs. State of M.P. and others [2015(3) MPLJ 453] to bring home the submissions as to non-applicability of Rules 1966 to Class III non-ministerial post in Police Department.
(6) Respondent/petitioner on his turn has supported the order. It is contended that even if for argument's sake it is admitted that 1966 Rules are not applicable to Class III non- ministerial post in Police Department then in absence of any limitation prescribed in Police Regulation to exercise 4 WA.227.2017 suo motu revisional power, the aid of Rules 1966 can be taken for the reasons that the Regulations are only directory. Reliance is placed on the decision in Raghunath Singh Vs. State [1959 JLJ 38], Premchandra Dhalpuria, Ex-Sub-Inspector, Police Vs. The State through the I.G. Police, Bhopal [1970 MPLJ 430], State of M.P. and others Vs. Brijesh Niboria [2007(2) MPLJ 273] and Union of India and others Vs. Vikrambhai Maganbhai Chaudhari [(2011) 7 SCC 321].
(7) Considered the rival submissions. (8) So far as applicability of the Rules of 1966 to Class III non-ministerial post in Police Department is concerned, Schedule appended with the Rules 1966 clearly mandates:
Home Department Description of Post Appointing Authority Authority competent to impose penalties which it may impose (with reference to item Nos. in rule 9) Authority Penalty Appellate Authority 1 2 3 4 5 Class III (Non- I.G. of Police - - -
Ministerial) Inspector of Police/Public Prosecutor/Subedars/ Company Commander/company Second in Command Sub- Deputy Inspector - - -
Inspector/Platoon General of Police Commanders/Assista nt Sub-
Inspector/Assistant Superintendent, Fire Brigade/Station Officer, Fire Brigade Head 1. Sr. Supdt of Police Constables/Constable 2. Supdt. of Police s/Haveldar/Naik 3. Commandant S.A.F.
4. Sr. Supdt. Police (Radio)
5. Supdt. Railway Police
6. Supdt. Fire Brigade
7. A.I.G. of Police
8. Dy. Supdt. of Police of S.A.F. Specially empowered by the 5 WA.227.2017 Government for the appointment of constables.
9. Officers of equivalent rank.
Class III (Non-ministerial) posts in the Police Department are governed by the Madhya Pradesh Police regulations framed under the provisions of the Indian Police Act. The Control and Appeal Rules, will, therefore, not apply to them.
(9) That co-ordinate Bench of this Court in Arun Prakash Yadav Vs. State of M.P. and others [2013(3) MPLJ 508] has held:
"15. Coming to the next contention of the learned counsel for petitioner about the contents of the Schedule to the Rules of 1966, it is noticed that the posts falling under Class-III (Non-Ministerial) Cadre in the Department of Police are provided by the said Schedule to be governed by the Police Regulations and not by the Rules of 1966. The said remark made in the sub-heading of "Home Department (Police)"
in the Schedule appended to the Rules of 1966 is in fact against the petitioner. Once this Court has held that induction into the Gazetted Cadre of the posts of Inspector of Police cannot take place by implication, the post of Inspector of Police, which as per the Schedule-II of Rules of 1966 belongs to Class-III (Non-Ministerial category, shall necessarily be governed by the Police Regulations and, therefore the contention of the petitioner that the competence of an authority to initiate disciplinary proceedings against an Inspector of Police ought to be tested on the anvil of Rules of 1966, is unsustainable."
(10) Similarly in Ramswaroop Pandre Vs. State of M.P. and others [2015(3) MPLJ 453] it is observed:
"5. The moot question is: whether the Inspector General of Police, Zone Shahdol was competent to appoint the Enquiry Officer. For that, we may usefully refer to Regulation 10 read with Regulation 12 of the M.P. Police Regulations. No doubt, the petitioner had initially placed reliance on the provisions of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966, but keeping in mind the provisions of the said Rules and in particular the express provision in the Rules 6 WA.227.2017 of 1966 that the Control & Appeal Rules will not apply to the Class-III (Non-ministerial) post in the Police Department, which, however, will be governed only by the M.P. Police Regulations, the argument about application of Rules 1966 was not pressed further."
(11) Thus, there survives no cavil as to the fact that the provisions of 1966 Rules are not applicable to Class III non- ministerial posts in Police Department. (12) Coming to the next issue as to whether when no time period is prescribed under Police Regulation to exercise the Revisional Power, whether an aid can be taken from the Rules of 1966.
(13) The issue in Raghuanth Singh (supra) was as to whether the applicant therein was appointed by the I.G. Police of erstwhile Gwalior, by the Government of Madhya Bharat, or by the I.G. M.B.; and whether in the first alternative the dismissal by the DIG, NR., MB is a contravention of Article 311 (1) of the Constitution, which in our considered opinion is not the present case. Nor the decision in Premchand Dhalpuria (supra) is of any assistance. The matter related to termination of probationer, as would have any applicability in the present context. (14) In Vikrambhai Maganbhai Chaudhari (supra), there was no dispute as regards applicability of Rule 29 of Central Civil Services (Classification, Control and Appeal) Rules, 1965. What was under consideration was the validity of notification dated 29.05.2001 which was issued in exercise of powers conferred under clause (vi) of sub-rule 1 of Rules 29 of Rules, 1965, however, since it did not provide for limitation within which the Revising Authority can exercise the powers under Rule 29, the said notification was held to be barred being in contravention to the rule contained under 29(1)(vi) of Rules, 1965. (15) The case at hand, however, has a different scenario.
7 WA.227.2017 Evidently, the Rules of 1966 are expressly made inapplicable in respect of non-ministerial class III post in Police Department. Since Rules of 1966 are inapplicable in case of persons like the petitioner it is beyond any comprehension that by implication, the said rules can be made applicable. Reliance placed by the learned Single Judge on the decision of Division Bench in State of M.P. and others Vs. Brijesh Niboria [2007(2) MPLJ 273] is misplaced for the reason that the case of Brijesh Niboria (supra) was in respect of an employee of Water Works Department and no cause of action of applicability of Rules 1966 are being commended at in respect of the employees belonging to Water Resources Department. Thus, the law laid down in Brijesh Niboria (supra) is not attracted in the present fact situation. The decision in Sushil Kumar Shrivastava Vs. State of M.P. and others [2007(1) MPLJ 392] and Angad Singh Rathore Vs. State of M.P. and others [2010(1) MPLJ 171] when tested on the anvil of above facts are of no assistance to the petitioner as would have allowed the Writ Court to cause any interference with the order passed by the Revisional Authority.
(16) Having, thus, considered, we are of the view that the impugned order passed in W.P. 4672/2015 cannot be given stamp of approval. It is, accordingly, set aside. The order dated 11.09.2014 enhancing punishment is upheld. (17) The appeal is allowed to the extent above.
(Sanjay Yadav) (S.K. Awasthi)
Judge Judge
(03/08/2017) (03/08/2017)
pd