Madhya Pradesh High Court
Dal Chand Ahirwar vs The State Of Madhya Pradesh on 14 February, 2012
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
W.P. No.2897/2007 (s)
DAL CHAND AHIRWAR
VS.
THE STATE OF M.P. & OTHERS.
Present: Hon'ble Shri Justice Rajendra Menon.
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Shri Adarsh Muni Trivedi, learned Senior counsel
with Shri S. K. Mishra, for the petitioner.
Shri Rajesh Tiwari, learned Govt.Adv. for the
respondents.
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Whether approved for reporting: Yes/ No
ORDER
14/2/2012:
Challenging the order Annexure P/14 dated 11.12.2003 passed by the Director General of Police rejecting the appeal filed by the petitioner and the order dated 7.6.2003 Annexure P/12 passed by the Inspector General of Police, imposing penalty of compulsory retirement, petitioner has filed this writ petition.2
2. At the relevant time when the impugned action was taken, petitioner was posted as Sub Inspector in Police Station, Kindrai, District Seoni. A complaint was received in the office of Superintendent of Police to the effect from one Swarooplal that his father has died in the village about six months back and for forwarding his claim for grant of pension under a particular scheme, the petitioner has demanded a sum of Rs.1000/-.
3. Record indicates that a show cause notice Annexure P/1 was issued to the petitioner. Petitioner's reply to the same Annexure P/2 being found to be not satisfactory, a preliminary enquiry was ordered which was conducted by the S.D.O.P. Police, Seoni and based on the report submitted by the said authority, a charge sheet Annexure P/3 was issued to the petitioner by the Superintendent of Police, Seoni on 21.11.2002. Petitioner denied the allegations leveled in the charge sheet, gave a detailed reply, however, finding the same to be unsatisfactory, the Additional Superintendent of Police was appointed as Enquiry Officer. Enquiry Officer conducted enquiry, five witnesses were examined and on the basis of evidence that came in the Enquiry, the Enquiry Officer recorded a finding, forwarded to the petitioner vide Annexure P/10 holding the petitioner is guilty of charges leveled against him. Petitioner's reply to the show cause notice being found to be not satisfactory, impugned order Annexure P/12 has been passed by the 3 Inspector General of Police, Jabalpur Range and appeal and mercy appeal having been rejected, petitioner is before this Court.
4. During the course of hearing Shri Adarsh Muni Trivedi, learned Senior Counsel raised various contentions. The contentions put forth by him pertains to the conduct of the SDOP in conducting preliminary enquiry in an illegal manner, so also with regard to non supply of certain documents which were relevant and were with regard to illegal manner of conducting preliminary enquiry. Learned Senior Counsel pointed out various discrepancies in the enquiry, perversity in the findings of Enquiry Officer and also raised grounds with regard to non issuance of show cause notice before imposing the punishment by the Competent Authority, act of the Appellate Authority in not deciding the appeal in accordance with law. However, a question of legal ground raised by Shri A. M. Trivedi, learned Senior Counsel was to the effect that the charge sheet was issued to the petitioner by the Superintendent of Police. The Superintendent of Police himself received the reply to the charge sheet and on being dis-satisfied with the reply appointed the Additional Superintendent of Police as Enquiry Officer, got the enquiry conducted and after receipt of enquiry report forwarded the entire matter to the Inspector General of Police for taking action. Taking me through the provisions of M.P. Civil Services 4 (Classification, Control and Appeal) Rules, 1966, the definition of 'disciplinary authority' as contained in Clause Rule 2(d), the punishment envisaged under the rule as contained in Rule 10, the authority competent to impose the punishment as detailed in Rule 12, the provisions of Rule 13 with regard to initiation of departmental proceedings and the procedure for imposing penalty as contained in Rule 14, 15 and 16, submitted that as per the Schedule to the Discipline and Appeal Rules with regard to an employee holding the post of Sub Inspector, the Appointing Authority and the Disciplinary Authority is the Deputy Inspector General of Police and accordingly, it is argued by him that initiation of departmental enquiry by the Superintendent of Police who is not the disciplinary authority vitiates the entire proceedings. Accordingly, Shri A. M. Trivedi, learned Senior Counsel submits that if the initiation of the enquiry itself is by an unauthorized person then the final punishment imposed are also stands vitiated. Accordingly, on these counts Shri A. M. Trivedi, learned Senior Counsel prays for interference into the matter.
5. Shri Rajesh Tiwari, learned counsel appearing for the respondents refuted the aforesaid contentions and with regard to the legal objection submitted that as the final punishment order is passed by the competent authority, namely the Inspector General of Police, there is no illegality in the matter and therefore, the contentions of 5 Shri A. M. Trivedi, learned Senior counsel needs to be rejected.
6. Having heard learned counsel for the parties at length and after due consideration of submissions made, I am of the considered view that before entering into the controversy on merit, the legal objection raised by Shri A. M. Trivedi, learned Senior Counsel, with regard to power and jurisdiction of Superintendent of Police to initiate departmental enquiry should be gone into.
7. It is not in dispute that before initiating the proceedings against the petitioner, a show cause notice Annexure P/1 was issued by the Superintendent of Police and it was the Superintendent of Police who issued the charge sheet to the petitioner for initiating the disciplinary proceeding under Rule 14 of the Discipline and Appeal Rules vide Annexure P/3 dated 21.11.2002 and thereafter appointed the Enquiry Officer to conduct an enquiry. In the Discipline and Appeal Rules of 1966 a "disciplinary authority" is defined in sub rule (d) of Rule 2 to mean a authority competent under the rules to impose on the government servant any of the penalties specified in Rule
10. In the schedule to this rule with regard to a Sub Inspector of Police the appointing authority is indicated to be the Deputy Inspector General of Police and the authority competent to impose penalty is also shown to be the Deputy Inspector General of Police. That being so, the disciplinary authority with regard to the petitioner who 6 is holding the post of Sub Inspector would be the Deputy Inspector General of Police in accordance to these rules. Under Rule 10 various punishments have been indicated and compulsory retirement is a major punishment envisaged under this rule. The procedure for imposing major punishment or rather any punishment under the rule is contemplated under Rule 14 and 15 and the authority competent entitled to initiate or institute these proceedings is indicated in Rule 13. Rule 13 of the Discipline and Appeal Rules consisted of two parts. Sub rule (1) of this rule indicates that the Governor or any other authority empowered by the Governor by general or special order may institute the departmental proceedings against a government servant or such authority may direct the disciplinary authority to institute the departmental proceedings against a government servant and impose any of the penalty specified in Rule 10. Thereafter in sub rule 2 to 13 it is stipulated that the disciplinary authority who is competent under these rules to impose any of the penalty, may institute the departmental proceedings against the government servant. Admittedly, in this case the departmental proceeding is not initiated by the disciplinary authority in accordance to sub rule 2 of rule 1 but it is by an authority subordinate to the disciplinary authority i.e. the Superintendent of Police. The Superintendent of Police could initiate the departmental proceeding if the Governor exercising the powers under Rule 13(1) had empowered 7 by general or special orders the Superintendent of Police to initiate departmental proceedings under this rule. Neither in the return nor during the course of hearing of this petition till date any such general or special order issued by the Governor authorizing the Superintendent of Police to institute or initiate a departmental enquiry is brought to the notice of this Court. Therefore, it has to be assumed that the Superintendent of Police is not authorized by the Governor through a general or special order issued under Rule 13(1) to institute disciplinary proceeding, it is also an admitted position that the same is not instituted by disciplinary authority as required under Rule 13(2). The proceeding initiated by an unauthorized person would be illegal and the entire subsequent action taken also vitiated, as it is contrary to procedure prescribed under the law.
8. When the statute prescribe a process to be followed for taking disciplinary action and when the process so prescribed under the statutes contemplates as to how and in what manner the disciplinary proceeding is to be initiated, mandate of rule has to be followed in its totality and if the disciplinary proceeding is initiated contrary to the aforesaid statutory rules, the entire initiation of disciplinary proceeding stands vitiated. This itself is sufficient to hold the subsequent action to be illegal.
89. When a law prescribes a procedure to be followed, then everything has to be done in accordance to the procedure prescribed under the law and anything contrary thereto being in contravention to the law stands vitiated being in nullity and therefore, cannot be given effect to. Under such circumstances this is a case where the initiation of departmental enquiry against the petitioner itself is found to be illegal being contrary to the statutory provisions and on that count this petition is liable to be allowed.
10. In view of aforesaid finding recorded by this Court now, it is not necessary for this Court to go into various other questions raised by Shri A. M. Trivedi, learned Senior Counsel during the course of hearing. Finding the initiation of departmental enquiry against the petitioner which culminated in imposing of punishment to be initiated by an unauthorized person, contrary to the statutory rules, this petition is allowed.
11. Orders impugned dated 7.6.2003 and the order dated 11.12.2003 passed by the appellate authority are quashed. As the petitioner has already attained the age of superannuation, respondents are directed to treat the petitioner to have remained in service till the age of superannuation and treating him to have retired on attaining the age of superannuation, consequential benefits be paid to him. All arrears be paid to him after deducting post retiral benefits already granted to him.
912. Petition stands allowed and disposed of with the aforesaid.
c.c. as per rules.
(Rajendra Menon) Judge Mrs. mishra