Madhya Pradesh High Court
Pursottam Dubey vs The State Of Madhya Pradesh on 18 August, 2022
Author: Vishal Dhagat
Bench: Vishal Dhagat
1 W.P.NO. 12950/2016
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
WRIT PETITION No. 12950 of 2016
Between:-
PURSHOTTAM DUBEY S/O LATE SHRI N. P. DUBEY, AGED ABOUT 53
YEARS, EX CONSTABLE NO. 766, R/O HOUSE NO. 391, BEOHARBAG
JABALPUR
.....PETITIONER
(BY SHRI MANOJ CHATURVEDI, ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH THE
SECRETARY HOME/POLICE DEPARTMENT VALLABH
BHAWAN, BHOPAL (M.P.)
2. DIRECTOR GENERAL OF POLICE, PHQ BHOPAL (M.P.)
3. INSPECTOR GENERAL OF POLICE, JABALPUR (M.P)
4. THE DEPUTY INSPECTOR GENERAL OF POLICE,
JABALPUR DIVISION JABALPUR (M.P.)
5. THE SUPERINTENDENT OF POLICE, JABALPUR
6. SEEMA SHARMA, HOME SECRETARY, HOME
DEPARTMENT, VALLABH BHAWAN BHOPAL
7. KAMLA UPADHYAY, AVAR SACHIV, HOME DEPARTMENT,
VALLABH BHAWAN BHOPAL
.....RESPONDENTS
(BY SHRI YASH SONI, GOVERNMENT ADVOCATE)
--------------------------------------------------------------------------------------------------------
RESERVED ON: 23.6.2022
DELIVERED ON: 18.08.2022
2 W.P.NO. 12950/2016
This petition coming on for hearing this day, the court
passed the following:
ORDER
Petitioner has filed this writ petition under Article 226 of the Constitution of India to quash orders dated 20.8.1997 and 13.9.2007 contained in Annexures P/8 and P/14 respectively. By impugned order dated 20.8.1997 Superintendent of Police, Jabalpur imposed penalty of removal from service on petitioner. Thereafter, petitioner has preferred an appeal, appeal/revision and mercy appeal which was also dismissed. Petitioners, aggrieved by the aforesaid orders, had filed writ petitions before this Court bearing no. W.P.No. 14121/20003. Vide order dated 19.3.2007, High Court quashed orders dated 23.10.1997 and 22.12.1998 passed by Appellate Authority and directed respondents to reconsider representation of petitioner. Pursuant to direction given by High Court, representation of petitioner was reconsidered and same was dismissed by impugned order dated 13.9.2007 contained in Annexure P/14.
3 W.P.NO. 12950/2016
2. Brief facts of the case are that petitioner, who was a constable, was assigned duty to take prisoners from Jabalpur Jail to Katni Court for trial on 28.1.1997. Three prisoners namely Sheikh Ramzan, Sunil and Gangaram were handed over to three constables namely petitioner Constable No. 766 Purshottam, constable no. 1401 Ramakant Dubey, and constable No. 1860 Ram Kumar. When petitioner along with two other constables were returning from Katni to Jabalpur and were waiting at Katni Railway station for train prisoners made a request for going to urinal. Said prisoners were taken to urinal. In urinal, prisoners loosed their handcuff's and they pushed Purushottam, who was holding the chain and ran away from there. One of prisoner Gangaram was caught on spot and two prisoners escaped. FIR was lodged regarding incident. Later on, prisoners namely Sheikh Ramzan and Sunil were also arrested. Charge sheet was issued to petitioner for negligent conduct in duty and for violation of Madhya Pradesh Police Regulations 465. Presenting Officer found charges to be proved. Show cause notice was issued to petitioners on enquiry report and 4 W.P.NO. 12950/2016 thereafter Superintendent of Police by order dated 20.8.1997 imposed punishment of removal from service. Petitioner preferred appeal as well as revision which were dismissed by orders dated 13.11.1997 and 13.09.2007. Petitioners had filed mercy appeal which was also dismissed on 8.6.1998. Being aggrieved, petitioner preferred Writ Petition No. 14121/2003. By order dated 19.3.2007, order dated 13.11.1997 (order passed by Appellate Court) and order dated 8.6.1998 (order passed in mercy appeal) were set aside and Authority was directed to reconsider the appeal. Respondent no.3 vide its order dated 13.9.2007 dismissed the appeal.
3. Petitioner has called in question order imposing penalty and dismissal of appeal on grounds that there was violation of Police Regulations 465 by respondents. Further it was submitted that respondents had not complied with Police Regulations 465 to 478 while assigning duty to him to take prisoners to Katni Trial Court. It was argued that punishment imposed upon petitioners is excessive as per Chapter 13 paras 26, 27, 28 of the General Book Circular. It is submitted 5 W.P.NO. 12950/2016 that impugned orders are violation of Articles 14 and 16 of the Constitution of India and prayer is made for setting aside the said orders. During the course of argument, it was argued by counsel for the petitioner that document was not supplied to petitioner. Reply filed by petitioner was not considered and rights of natural justice have been violated. Order passed by authority is an un-reasoned order. Eye witnesses in the case have not been examined and therefore, order is bad in law and deserves to be set aside on aforesaid grounds.
4. Government Advocate appearing for the State submitted that petitioner was supplied all documents relied upon in departmental enquiry and reply of petitioner was also considered. Petitioner was given an opportunity to cross examine the witnesses but he did not cross examine any of the witnesses. Thereafter, notice was given on the report of departmental enquiry and Superintendent of Police considering all the facts and circumstances of the case has imposed penalty. Appellate Authority has reconsidered the appeal of petitioner objectively and all circumstances and 6 W.P.NO. 12950/2016 grounds which were taken by petitioner were considered and thereafter representation filed by petitioner was dismissed. In view of the aforesaid, no illegality is found in the order passed by Appellate Authority. Petitions filed by the petitioner may be dismissed.
5. Heard learned counsel for the parties.
6. This Court has ordered for keeping the records of departmental enquiry present before this Court. Records of departmental enquiry is not available.
7. Counsel for the petitioner did not insist for calling upon the records and preferred to argue the case on basis of documents available on record. In view of the aforesaid facts and circumstances, writ petition filed by the petitioner was heard finally.
8. It was submitted that petitioner was an old man of 53 years of age. Constables were standing with their back facing prisoners when they were attending the call of nature. Taking advantage of same, prisoners pushed the constables and ran away. Running away was not due to negligence on 7 W.P.NO. 12950/2016 duty by petitioners. Said ground is on merits of the case, therefore, same cannot be considered in writ petitions. Petitioner had further raised ground before disciplinary authority and appellate authority that Police Regulation 471 was not followed by respondents. As per said regulation, on 1 to 3 prisoners, two constables are deployed. In this case, three constables were deployed, therefore, there was violation of Police Regulations 471. Petitioner was not apprised that prisoners were dangerous, therefore, there was failure on part of authorities which assigned duty and no negligence on the part of petitioners. Appellate Authority while reconsidering the representation of petitioners considered grounds regarding non grant of opportunity of hearing and cross examination and disproportionate punishment. Both the said grounds were considered objectively by the authorities and answered that sufficient opportunity of hearing was given. Petitioner has not taken any ground that documents relied upon in departmental enquiry was not supplied to him. Ground was taken that he has not given an opportunity to cross examine the 8 W.P.NO. 12950/2016 witnesses. Said ground was specifically dealt with by the said authority in its order dated 13.9.2007. In the said order, it has been mentioned that documents were given to petitioner. Enquiry report was also supplied to him and after receiving representation penalty was imposed. Appellate Authority in its order dated 13.9.2007 has stated that principal of natural justice has been followed and petitioner was having adequate opportunity to cross examine the witnesses. Petitioner had not raised any point that he has not been supplied documents, therefore, said issue cannot be considered in the petition for the first time. Petitioner is unable to point out from his representation that he has taken a ground regarding documents which have not been supplied to him and same has not been dealt by Appellate Authority in its order dated 13.9.2007. Reply filed by the petitioner was also taken into consideration by the Appellate Authority.
9. Grounds of non compliance of Police Regulations from 465 to 478 was never raised, therefore, said ground raised 9 W.P.NO. 12950/2016 for first time before this Court cannot be considered. Question before this Court is:-
(i) Whether Disciplinary Enquiry is vitiated due to non compliance of Police Regulations 471?
(ii) Punishment imposed upon petitioners was disproportionate?
(iii) Whether petitioner was not charged with negligence on duty and charge was only under Police Regulations 465 ? In view of same, no penalty could be imposed.
10. Police Regulations 465 instructs police man regarding use of handcuffs on prisoners when they are escorted from Jail to Court. Police Officers and Constables are required to act as per Police Regulations 465 in escorting prisoners from jail to Court. It was submitted by counsel for the petitioner that there was no charge of negligence and only charge was of violation of Police Regulations 465. Police Regulations 465 are only instructions regarding use of handcuffs, therefore, petitioner could not have been punished in departmental enquiry.
10 W.P.NO. 12950/2016
11. On going through the charge, it is found that there was specific charge on petitioner that during his deployment on 28.1.1997 accused Sheikh Ramzan and Sunil escaped from police custody due to negligence of petitioner and he has violated Police Regulations 465. Petitioner has defended himself in departmental enquiry against charges of negligence of conduct in duty and adduced evidence against it. In view of same, there is no force that there was no charge regarding negligence and petitioner was prejudiced. Regulation 471 provides as under:-
471. Escorts by Rail.- The following strength of escort will usually suffice for prisoners sent by fail, but Superintendents are at liberty to increase the strength of the guard upon any particular occasion, when they think that circumstances require it:-
For life prisoners Head Constables Head Constables From 1 to 3 prisoners ... 2 From 4 to 6 prisoners .. 3 From 7 to 10 prisoners 1 4 From 11 to 20 prisoners 1 6 From 21 to 30 prisoners 2 8 For ordinary prisoners 11 W.P.NO. 12950/2016 From 1 to 5 prisoners .... 2 From 6 to 10 prisoners .... 3 From 11 to 20 prisoners 1 4 From 21 to 30 prisoners 1 6
12. On 1 to 3 prisoners, two police constables will be deployed for escort. In the present case, three constables were deployed that does not show violation of Police Regulations 471 but shows that deploying authorities was conscious and careful in deploying extra guard so that prisoners may not escape. There is no force in argument that since three guards were deployed in place of two, therefore, there is violation of Police Regulations 471.
13. Counsel for the petitioner has also raised ground that petitioner was not informed that prisoners were dangerous so that petitioner would be careful. Police constables had to be careful and alert during their duty. Handcuffs and iron chain were also given and guards in sufficient strength was deployed, therefore, no fault could be found on part of officer assigning duties. Merits of case has already been 12 W.P.NO. 12950/2016 considered and decided by Appellate Authority and Court will not enter into its merits.
14. It is argued by counsel for the petitioner that punishment which has been imposed upon petitioner is excessive and disproportionate. On going through the impugned order which has been passed by Inspector General of Police, it is found that he had imposed proportionate punishment on petitioner. He has taken into consideration earlier record of petitioner and it has been mentioned that during 16 years of service petitioner was given 32 prizes and 36 minor penalties and one major penalty was imposed on him in year 1995, therefore, it cannot be said that punishment is disproportionate.
15. In view of the aforesaid facts and circumstances of the case, writ petition filed by the petitioner is dismissed.
(VISHAL DHAGAT) JUDGE ARVIND Digitally signed by ARVIND KUMAR DUBEY DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, KUMAR 2.5.4.20=21f62363616c542557be6af6449d93e8bada96 bb1a9b326e70f78a2f30a6ba0d, pseudonym=A1687C389CAE64C72D4FBF10051DC652 09E6F792, serialNumber=E0CA2561BA34CC691347539D20115EE DUBEY 64F54F7B9AB9553263137BEE91BE8FB4F, cn=ARVIND KUMAR DUBEY Date: 2022.08.22 11:48:26 +05'30' 13 W.P.NO. 12950/2016 DUBEY