Madhya Pradesh High Court
Purshottam Ivne vs The State Of M.P. And Ors. Judgement ... on 19 September, 2013
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH : JABALPUR
Writ Petition No. 24486/2003
O.A. No. 117/2000
Purshottam Ivne
Vs.
State of Madhya Pradesh and others.
PRESENT :
Hon'ble Shri Justice K.K. Trivedi.
Shri Kamlesh Dwivedi, learned counsel for the
petitioner.
Shri Rahul Jain, learned Government Advocate for the
respondents/State.
ORDER
(19.09.2013) The present petition was originally filed as Original Application No. 117/2000 before the M.P. Administrative Tribunal Bench at Bhopal, which on closer of the Tribunal has been transmitted to this Court and is registered as a Writ Petition.
2. The grievance of the petitioner is against the order of termination issued against him on 08.12.1998 after a departmental enquiry as against the order by which the appeal preferred by the petitioner has been rejected on 19.05.1999. It is contended that the 2 petitioner, who was working as a Constable (Peon) in the establishment of the Superintendent of Police (QD) Police Headquarter, Bhopal was subjected to a departmental enquiry upon issuance of a charge sheet on 06.05.1998. Two charges were levelled against the petitioner. A reply was filed by the petitioner, but the same was not found satisfactory by the departmental authorities and, therefore, the Deputy Superintendent of Police, P.H.Q., Bhopal was appointed as Enquiry Officer. After conducting such an enquiry a report was given and upon receipt of the report a second show cause notice was issued to the petitioner proposing the penalty of termination from service. The petitioner submitted his explanation but instead of considering the same, without application of mind and without following the procedure laid down under the M.P. Police Regulations, the order impugned was issued on 08.12.1998, terminating the petitioner from services. Being aggrieved by the order, the petitioner preferred an appeal before the Appellate Authority but instead of deciding the appeal in appropriate manner, an order was issued on 17.05.1999 and appeal was dismissed. It is contended that since the provisions of law were not considered, the defence was not examined, the enquiry itself was not conducted in the manner indicated in the Regulations, therefore, the order of termination as well as the order passed by the Appellate Authority both are bad in law.
3. Upon issuance of the notices of Original Application, a return was filed by the respondents 3 before this Court. In the return, it is contended that enquiry was conducted properly in terms of the provisions made in the Regulations. The petitioner was medically examined and it was found that he was in drunken state. This being so, the charge against him was found proved by the Enquiry Officer. Full opportunity of defence was extended to the petitioner and that being so, since it was found that the second charge with respect to the avoidance of the important duty of the Legislative Assembly work was also found proved, the second show cause notice was given to the petitioner to extend one more opportunity of defence and after considering the said explanation submitted by the petitioner, rightly he was removed from the services. The appeal filed by the petitioner was also considered in appropriate manner by the Appellate Authority and since there was no substance in the appeal, the same has been rightly dismissed. In view of this, it is contended that the petitioner would not be entitled to any relief claimed in the petition and the same deserves to be dismissed.
4. Heard learned counsel for the parties at length and perused the record.
5. The order impugned contained in Annexure A/1 is required to be issued in the manner indicated in the Regulations. Chapter VIII of the M.P. Police Regulations contains the punishment, their kinds, procedure as to how the punishment is required to be imposed, powers of the competent authority to impose 4 punishment and information which is required to be recorded in the relevant record which required to be sent for the punishment. Chapter X of the Regulations deals with the appeals and petitions. The procedure which is to be followed for imposing the penalty after a departmental enquiry is prescribed in Regulation 228 which for the convenience is reproduced as a whole :-
"228. D.E.- When and how held.-- In every case of removal, compulsory retirement from service, reduction in rank, grade or pay or withholding of increment for a period in excess of one year a formal proceeding must be recorded by the Superintendent in the prescribed form,---setting forth].
(a) the charge ;
(b) the evidence on which the charge is based ;
(c) the defence of the accused ;
(d) the statements of his witnessess (if any) ;
(e) the findings of the Superintendent, with the reasons on which it is based ;
(f) the superintendent's final order or recommendation, as the case may be ;
Provided that it shall not be necessary to record a formal proceeding, if, due to exigencies of 5 service and not by reason of any misconduct or fault on his part, a Police office is transferred from a post carrying a special or specialist pay in the Special Armed Force, Motor Transport or Radio Telegraphy sections to a post not carrying such pay and reduction in his pay is caused by reason of such transfer.
[Note (1).--If a written defence is tendered, it should be accepted and attached to the record.
Note (2)---Reasonable time should, however, be given to the accused person to submit his written defence after the charge sheet is handed over to him.
Note (3).-- The travelling allowance of the defence witnessess shall be borne by the department. In Order to facilitate the production of defence witnessess, the Inquiry Officer on the application of the accused should issue a notice to the defence witnessess to present themselves on the date so fixed. If the witnessess do not turn up after such notice, it shall be the responsibility of the accused to produce his own witnessess]."
66. The procedure which is to be complied with if the enquiry is not conducted by the Superintendent of Police, is prescribed in Regulation 232. If an enquiry is conducted by any subordinate of Superintendent of Police, the findings of the Enquiry Officers are to be appreciated and the findings of the Superintendent of Police is required to be given with reasons in the final order of punishment. A bare perusal of order of punishment Annexure A/1 will make it clear that no reasons or findings were recorded by the Superintendent of Police as to how and why he agreed with the enquiry reports or its findings and merely saying that the show cause submitted by the petitioner was not satisfactory, the petitioner was held guilty of misconduct. This cannot be said to be compliance of the provisions of paragraph 228 of the Regulation referred to herein above.
7. Similarly there is specific provisions made for deciding the appeal. Regulation 262 onwards prescribed filing of an appeal against an order of punishment. Regulation 273 specifically prescribes the manner of passing the order in appeals. For the convenience the same is reproduced :
"273. Appeals -- order passed on: -Every order passed in appeal shall contain the reason on which it is based. If an order of dismissal is annulled the officer annulling it shall declare whether the period of enforced absence from duty shall count towards pension or not. A 7 copy of ever appellate order with the reason on which it is based, will be given free of cost to the appellant."
8. Again a bare perusal of the appellate order placed on record as Annexure A/2 will indicate that the Appellate Authority has given no reasons whatsoever while rejecting the appeal of the petitioner against the order of penalty. If there are procedures prescribed in Regulations made under the provisions of the Police Act, they have the force of law and non-compliance of the same would amount to non-consideration of the case of petitioner in appropriate manner. Such orders would not be sustainable in the eye of law. That apart, as has been pointed out by learned counsel for the petitioner, there is a manner prescribed for imposition of punishment in Regulation 226 where it is categorically recorded that the dismissal is a last resource and should, ordinarily, not be inflicted until all other means of corrections have failed. This makes it clear that unless the disciplinary authority was of the opinion that all measures of corrections earlier adopted have failed in respect of the conduct of the petitioner, such a major punishment could not have been imposed on him. Learned counsel for the petitioner has placed reliance on the decision of this Court in the case of Ganesh Kumar Sharma Vs. State of M.P. and others, 2013 (2) MPLJ 402, wherein after interpreting the provisions of Regulation 226, the Division Bench of this Court has held that 8 ignorance of the provisions of Regulation 226 was not permissible and if there was no reference made in that respect in the order of punishment, the same was not sustainable. It would be profitable to refer to the findings recorded by the Division Bench in this respect in paragraph 13 which is abstracted as under :
"If the aforesaid provision is kept in juxtaposition to Clause 64 (iv) of M.P. Police Regulations for which appellant was charged, it would reveal that despite there is provision in Regulation Clause 64 (iv) which pertains to maintain discipline; to observe subordination and to obey lawful orders promptly, even then Clauses (iii) and (v) have been framed in Regulation 226 which are applicable to Constables and which pertains to the penalty to be awarded to a Constable. Indeed, by keeping in mind Clause 64
(iv) of the said Regulations, the charges were framed in regard to disobeying lawful orders of the superiors and, therefore, before passing the extreme order of punishment of removal from service, according to us, clauses (iii) and (v) of Regulation 226 ought to have been seen by the Disciplinary as well as by the Appellate Authority. Learned Dy.
Additional General has submitted that earlier the appellant was warned by the authorities but fairly states from the record that his work was appreciated and several times he was also awarded by suitable awards.
According to us, since clauses (iii) and
(v) of Regulation 226 was not taken into account by the Disciplinary and the Appellate Authority therefore, we hereby direct the Disciplinary Authority, Commandant, 26th Battalion, 9 SAF, Guna (respondent No.3) to examine the case of the appellant vis- a-vis to Regulation 226 of M.P. Police Regulations and by paying heed to clauses (iii) and (v) of Regulation 226, fresh order in accordance to the law may be passed."
9. In complete agreement with the findings recorded by this Court in the case of Ganesh Kumar Sharma (supra) it has to be held that the order of punishment issued against the petitioner was not in consonance to the provisions of paragraph 226 of the Regulation and that the appeal of the petitioner was also not properly decided. Consequently, the said orders cannot be affirmed by this Court. As a result, the petition is allowed. The orders impugned contained in Annexures A/1 and A/2 are hereby quashed. The matter is remitted back to the disciplinary authority to consider the entire record of the enquiry, the findings recorded by the Enquiry Officer and to take a fresh decision in the matter of punishment against the petitioner, keeping in view the provisions of Regulation 226 of the M.P. Police Regulations. Let it be done within a period of three months from the date of receipt of copy of this order.
10. As it is stated that the petitioner was placed under suspension owing to the departmental enquiry, the period of absence of the petitioner on account of order of termination which order is now set aside by this Court, would be regularized by the respondents in accordance to law while passing the order of 10 punishment.
11. The writ petition is allowed to the extent indicated herein above. There shall be no order as to costs.
(K.K. Trivedi) Judge b 11