Madhya Pradesh High Court
R.A. Tiwari vs The State Of Madhya Pradesh on 15 October, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:52089
1 WP-22407-2013
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 15th OF OCTOBER, 2024
WRIT PETITION No. 22407 of 2013
R.A. TIWARI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri A. S. Raizada - Advocate for petitioner.
Shri A.S. Baghel - Government Advocate for respondents/State.
ORDER
With consent of parties the matter is finally heard.
2. The present petition has been filed challenging the issuance of charge sheet for common proceedings issued by the Superintendent of Police, Narsinghpur - respondent No.4.
3. It is the case of the petitioner that he joined his services as Constable in the respondent department in the year 1977 and thereafter in 1982 he was promoted to the post of Hawaldar. Later on in 1987 he was promoted as ASI and thereafter he became Sub-Inspector in 2004. When the petitioner was posted in outpost Sihora of Police Station Gadarwara, an unfortunate incident took place in which five persons were murdered. The Town Inspector were line attached and the petitioner thereafter investigated the matter for 4-5 days. Thereafter, one Shri K.K. Tiwari was posted as SHO. The team was constituted by the then Superintendent of Police which was headed by the SDO(P) including Inspector K.K. Tiwari, petitioner and some Signature Not Verified Signed by: LORETTA RAJ Signing time: 05-12-2024 5:10:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52089 2 WP-22407-2013 other persons. The petitioner has acted in pursuance to the directions of the superior officers and conducted investigation to the best of his ability. There was the difference of opinion with regard to one of the accused between petitioner and SDO(P) Vinod Singh Chouhan. The incident was highlighted by the electronic and print media and the Superintendent of Police was also transferred.
4. Thereafter, the enquiries and reports from various committees were called for and the Town Inspector was ultimately held guilty for his misconduct and was punished for the said act of working negligently. After the trial in the criminal Court with respect to the same incident the final judgement of acquittal was passed and some strictures were passed against the police persons without giving an opportunity of hearing to them.
5. Aggrieved by the same, the State Government filed a case before this Court challenging the legality of the order passed in S.T. No.104/2009 levying strictures against the police officers. The authorities on the one hand has challenged the legality of the order passed in session trial and on the other hand had taken a decision to initiate action against the petitioner and others and has issued charge sheet to them for the same incident.
6. A reply has been filed by the petitioner clarifying the position vide letter dated 02.05.2010. It is argued that the charge sheet for a common proceedings given to him and to the Inspector is illegal.
7. It is submitted that in identical situation the charge sheet issued to an Inspector was subjected to challenge by filing a W.P. No.6058/2013(S) (Manjeet Singh v. State of M.P. and others) and vide order dated 02.04.2013 Signature Not Verified Signed by: LORETTA RAJ Signing time: 05-12-2024 5:10:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52089 3 WP-22407-2013 the said charge sheet was quashed. However, while quashing the charge sheet liberty was given to the respondents to issue fresh charge sheet against the petitioner in accordance with law, if so advised.
8. Thereafter, the petitioner made a representation through proper channel along with the covering letter of the office of Superintendent of Police. The petitioner questioned the legality of the charge sheet before this Court in W. P. No.14067/2012 (R.A. Tiwari v. State of M.P.) and vide order dated 16.07.2013, this Court was pleased to quash the charge sheet issued to the petitioner with a liberty to the authorities to issue a fresh charge sheet considering the objections with regard to the competence of the authority.
9. It is argued that a fresh charge sheet dated 13.09.2013 which was issued as verbatim the same as earlier charge sheet dated 10.04.2012. It has been issued on the dictates of PHQ which is clear from the opening words of the charge sheet and now the same has been signed by the Superintendent of Police. The authorities while issuing the fresh charge sheet to the petitioner have not applied their mind nor there is any indication of order passed by this Court. It is argued that petitioner was not found suitable for promotion as is reflected from fit list dated 15.05.2013 (Annexure P/3). The respondents ought to have considered the case of the petitioner and condoned the misconduct if any, in the light of the judgment passed in the case of Lal Audhraj Singh Lal Ram Pratap Singh v. State of M.P. reported in 1967 MPLJ 528. It is argued that after the order dated 16.07.2013 was passed by the Gwalior Bench of this Court reported in 2013(3) MPLJ 508 (Arun Prakash Yadav v. State of M.P.) the State Government has issued a Circular Signature Not Verified Signed by: LORETTA RAJ Signing time: 05-12-2024 5:10:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52089 4 WP-22407-2013 by which all those persons who are in pay scale of Rs.6500-Rs.10500/- have been declared to be Class-II Gazetted Officer. And in that view Inspector is declared to be as Class-II Gazetted Officer. Now in terms of Rule-7 of CCA Rules the appointing authority of Class-I and Class-II is the State Government. Therefore, the charge sheet issued by the Superintendent of Police is illegal and cannot be allowed to be sustained in law. Therefore, the charge sheet is not maintainable. He has prayed for quashment of the charge sheet.
10. On notice being issued, a detailed reply has been filed by the respondent/authorities along with an application for vacating stay.
11. It is observed that while the petitioner was posted in Sihora Police Station, five persons were murdered and the petitioner has investigated the matter in terms of the directions given by the superior authorities. Certain irregularities and negligence was committed by the police department and the same was considered by the Sessions Court while deciding the Sessions Trial and some strictures and observations were made against the police department. Considering the same the respondents have decided to initiate a departmental action against the petitioner and other officers connected with the investigation. A show-cause notice was issued to the petitioner to which he has submitted his reply. The petitioner has mainly challenged the issuance of charge sheet on the ground that to initiate a joint enquiry in terms of Rule 18 is not permissible since the petitioner is holding the post of Sub-Inspector against whom the charge sheet cannot be issued by the Superintendent of Police. Since under the police regulations the Superintendent of Police is not Signature Not Verified Signed by: LORETTA RAJ Signing time: 05-12-2024 5:10:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52089 5 WP-22407-2013 having any powers to impose punishment from dismissal of service. The initial charge sheet issued on 10.04.2012 was quashed by this Court vide order dated 16.07.2013 passed in W.P. No.13062/2012 with a liberty extending to the authorities to issue fresh charge sheet.
12. It is submitted by the respondent/State that the writ petition filed against issuance of charge sheet is not maintainable in view of the settled proposition of law in the case of Union of India and another v. Kunnishetty Satyanarayan : (2006) 12 SCC 28 and even in the case of Arun Prakash Yadav (supra) wherein the Division Bench of this Court has held that the Superintendent of Police is having powers to initiate disciplinary action against the petitioner who is holding the post of Inspector in terms of Regulation of 228 of the Police Regulation.
13. As far as arguments raised by the petitioner with respect to issuance of joint charge sheet and joint enquiry is concerned, the same has been initiated after the approval sought from the Deputy Inspector General of Police vide letter dated 23.09.2013. Under the Police Regulations, Deputy Inspector General of Police is having the power to remove/dismiss the person holding the post of Sub-Inspector and since due approval from the Competent Authority is obtained the charge sheet dated 30.09.2013 can always be issued and there is no violation of Rule 18 of the Rules of 1966. It is further contended that the interim relief has been granted by this Court way back in the year 16.07.2013 and due to the said interim relief they are not in a position to conduct a departmental enquiry. They have also filed an application for vacating stay. Therefore, he has prayed for dismissal of the Signature Not Verified Signed by: LORETTA RAJ Signing time: 05-12-2024 5:10:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52089 6 WP-22407-2013 writ petition.
14. Heard learned counsel for the parties and perused the record.
15. The challenge to the charge sheet is basically made on two grounds. First, that after quashment of the first charge sheet dated 10.04.2012, the authorities have again issued a charge sheet dated 13.09.2013 which is verbatim the same as earlier charge sheet dated 10.04.2012. The only difference being that the same has now been signed by the Superintendent of Police. The fact remains that the Superintendent of Police being the Competent Authority to issue a charge sheet to the petitioner who is holding the post of Sub-Inspector in terms of the judgment passed in the case of Arun Prakash Yadav (supra). Further in terms of Regulation 228 of Police Regulations a joint charge sheet can be issued on the approval of the Deputy Inspector General of Police who is the Competent Authority to take initiative for removal from service of employees like petitioner. The same is not disputed by the counsel for the petitioner. The respondents have produced a letter dated 23.09.2013, which shows that the approval was sought from the Deputy Inspector General of Police for initiation of the joint enquiry and thereafter the charge sheet has been issued by the Superintendent of Police. Thus it is clear that there is no violation of Rule 18 of CCS/CCA Rules as joint charge sheet is issued after due approval of DIG. Under the Police Regulations, DIG is having power to dismiss or remove an employee holding the post of Sub-Inspector. Thus, order framing charge sheet is justified.
16. The Division Bench of this Court in the case of Arun Prakash Yadav (supra) has held as under -
"20. A bare reading of Regulation 228 indicates that Superintendent alone has been Signature Not Verified Signed by: LORETTA RAJ Signing time: 05-12-2024 5:10:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52089 7 WP-22407-2013 mentioned as the authority to frame and issue a charge-sheet in respect of major penalty or penalties which have the effect of major penalties. The term "Superintendent" means the Superintendent of Police, which is evident from Regulation 32 which describes the SP as the head of the Police Force of his District. The Police Regulations do not prescribe the competence of any authority to issue a chargesheet in any other provisions except Regulation 228, which solely empowers the SP. This power of issuance of chargesheet is bestowed upon the SP in regard to all persons holding the ranks subordinate to that of the SP. By necessary implication, the provisions of Regulation 228 exclude all authorities, superior or inferior to the SP to issue a charge-sheet to any Police personnel holding the rank subordinate to that of SP. It can, thus, be safely held that for an Inspector of Police, which in rank is subordinate to SP, the sole competent authority to issue charge-sheet is the SP under the Police Regulations, which exclusively govern the field as held supra.
21. From the above discussion, it is crystal clear that no other authority except SP is empowered under the Police Regulations to institute disciplinary proceedings/issue chargesheet to an Inspector of Police.
22. It is now to be seen that in the background of the abovesaid findings of the SP alone being competent to issue charge-sheet to an Inspector, can the DIG/IG or for that matter any Officer superior in rank to the SP, institute disciplinary proceedings/issue charge-sheet to an Inspector of Police.
23. The right of a civil post holder to question the competence of an authority to institute disciplinary proceedings/issue charge-sheet is neither a fundamental nor a constitutional right. Such a right can be provided by a Statute in shape of an Act or Rule/Regulations.
24. The Apex Court in the case of State of U.P. v. Chandrapal Singh, reported in (2003) 4 SCC 670 has held thus:
"8. Thus, looking to the terms and content of Article 311(1) of the Constitution, it does not follow that even initiation or conduct of inquiry proceedings should be by that authority itself, which is empowered to dismiss or remove an official under the said article, unless there is an express rule governing the official requiring it to be so."
17. From the perusal of the aforesaid order passed by the Division Bench, Signature Not Verified Signed by: LORETTA RAJ Signing time: 05-12-2024 5:10:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52089 8 WP-22407-2013 it is clear that the only the Superintendent of Police is competent to initiate the disciplinary proceedings against the officers upto the rank of Inspector. Thus, the case laws which have been relied upon by the petitioner is of no help to him.
18. The law with respect to maintainability of the petition against a charge sheet is settled by the Hon'ble Supreme Court in the case of Kunnishetty Satyanarayan (supra) wherein it is held as under -
"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show- cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash Signature Not Verified Signed by: LORETTA RAJ Signing time: 05-12-2024 5:10:33 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:52089 9 WP-22407-2013 a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
19. Under these circumstances, the challenge to the aforesaid charge sheet is unsustainable. The authorities have rightly taken a decision to issue a charge sheet to the petitioner. The same has been issued by a Competent Authority as has already been pointed out hereinabove. The Superintendent of Police, prior to issuance of joint charge sheet has taken approval of the Competent Authority i.e. Deputy Inspector General of Police. The authorities were well within their domain to issue the said charge sheet to the petitioner. It is further clarified that the second charge sheet which has been issued is in pursuance to the liberty granted by this Court in the earlier round of litigation.
20. Under these circumstances, no relief can be extended to the petitioner. Petition sans merit and is hereby dismissed. No order as to costs.
(VISHAL MISHRA) JUDGE L.Raj Signature Not Verified Signed by: LORETTA RAJ Signing time: 05-12-2024 5:10:33 PM