Madhya Pradesh High Court
Mahendra Prasad Ojha vs Home Department (Police) on 5 January, 2022
Author: Vivek Rusia
Bench: Vivek Rusia
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THE HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
(S.B.: HON'BLE Mr JUSTICE VIVEK RUSIA)
Writ Petition No.8601/2021
Mahendra Prasad Ojha,
S/o- Late Shri Laxman Prasad Ojha,
Age-60 years, Occupation-Service,
R/o-16, Shantinathpuri, Indore (M.P.)
.....................petitioner
V/s
The State of Madhya Pradesh
Through Principal Secretary
to the Govt. of Madhya Pradesh,
Department of Home (Police),
Vallabh Bhawan Mantralaya, Bhopal (M.P.)
................respondent no.1
The Superintendent of Police,
District Dewas (M.P.)
................respondent no.2
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• Shri L.C. Patne, learned counsel for the petitioner. • Shri Ranjeet Sen, learned Govt. Advocate for the respondent/State.
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(Heard on 17.12.2021) (Order Passed on 05.01.2022) With the consent of the parties, the writ petition is heard finally.
The petitioner has filed the present petition being aggrieved by the order dated 18.12.2020 passed by respondent no.1 whereby he has been imposed with a major punishment of withholding of one increment with cumulative effect.
2. Necessary facts of the case in short are as under:-
(i) At the relevant point of time, the petitioner was posted as Sub-
Inspector/S.H.O. at police station Kantapod, District-Dewas. A complaint dated 15.06.2011 was made to respondent no.2 against the petitioner alleging that while investigating crime no.150/2011
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registered at the police station- Kantaphod under sections 363, 366, 376, 506 and 34 of the I.P.C. he did not add section 3(2)(V) and 3(1) (12) of the SC/ST Act and Section 376(2)(g), 342, 368 into the aforesaid crime and therefore he was negligent in discharging his duties. A show-cause notice dated 25.08.2012 was issued to the petitioner, he submitted a detailed reply on 31.08.2012. After examining the allegations and the reply submitted by the petitioner vide order dated 27.09.2012 a punishment of 'censure' under the M.P. Police Regulation 214(i) was imposed upon the petitioner by respondent No.2 .
(ii) After two years the respondent no.1 has issued a joint charge sheet dated 21.10.2014 to the petitioner and two others in respect of the same allegations in which he had been punished with a minor punishment of censure. The petitioner submitted a detailed reply on
03.12.2014 denying the charges and objected to the maintainability of initiation of a second Departmental Enquiry. The petitioner was subjected to a Joint Departmental Enquiry under Rules 14 read with Rule 18 of the M.P. Civil Service (Classification, Control & Appeal) Rules, 1966. The petitioner submitted a representation that the second departmental enquiry is nothing but double jeopardy in violation of fundamental rights under Articles 20 of the Constitution of India. Respondent no.1 continued with the enquiry against the petitioner and three other delinquents, and the enquiry officer submitted an enquiry report on 03.10.2017 and in the enquiry report although the charges have been levelled against the petitioner and found true but it has been observed that the petitioner had been punished with a punishment of censure which has not been cancelled or reviewed under the M.P. Police Regulation. Upon receipt of the aforesaid enquiry report dated 03.10.2017 the respondent no.1 issued
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a show cause notice dated 09.04.2018 against the petitioner and others calling upon them to submit a reply within 15 days. The petitioner submitted a detailed reply and prayed for exoneration in the matter citing double jeopardy. Vide order dated 18.12.2020 the respondent no.1 had imposed major punishment of withholding of one increment with cumulative effect hence the present petition before this Court inter alia on the ground that bypassing impugned order the petitioner has been punished twice for the same misconduct which he did not commit.
3. Shri L.C. Patne, learned counsel for the petitioner submitted that once the petitioner has been punished with a minor punishment of censure then he can not be subjected to the major punishment of stoppage of one increment in violation of Article 20 of the Constitution of India under the principles of double jeopardy. In support of his contentions, he has placed relevance over the judgment passed by the Division Bench of this Court in the cases of Arun Prakash Yadav Vs. State of M.P. & others 2013(3) MPLJ 508 (DB) and State of M.P. & others Vs. Arun Prakash Yadav (R.P. No.327/2013, decided on 20.12.2013 and State of M.P. & others Vs. Satyendra Singh Bhadoriya 2018 (1) MPLJ 379.
4. The respondents have filed the reply without denying the facts mentioned in the petition. It is further submitted that by non-
including the relevant sections of the ST/ST Act in the crime the petitioner has committed serious misconduct. It is further submitted by the learned Government Advocate that in the Joint Departmental Enquiry he has admitted his misconduct and pleaded ignorance of provisions of relevant sections of SC/ST Act. Learned Government Advocate has argued that Respondent no.1 in the exercise of suo- moto powers under the regulation 270 of the M.P. Police
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Regulations has rightly imposed the punishment of withholding of one increment with cumulative effect looking to the serious misconduct committed by the petitioner. Section 270(1) of M.P. Police Regulation gives powers to the higher officers to review the order of punishment and exoneration passed by the dismissing authority as well as by the appellate authority. Learned Govt Advocate for the respondent/State has submitted that earlier punishment order was imposed by the Superintendent of Police, Dewas and now the impugned order has been passed by respondent no.1 who is superior to the Superintendent of Police, Dewas. Therefore, there is no illegality in the passing of the impugned order and there is no double jeopardy.
I have heard the learned counsel for the parties and perused the record.
5. So far the merits of the case is concerned the petitioner has already accepted the order of censure passed by the Superintendent of Police, Dewas therefore, there cannot be any denying of the allegations levelled against him in the chargesheet. The only issue which requires consideration is whether after imposition of punishment of censure in given misconduct whether the petitioner has been subjected to the Joint Departmental Enquiry along with other delinquents? Respondent no.1 has taken a decision to initiate Joint Departmental Enquiry under Rules 14 (3) read with Rule 18 of the M.P. Civil Service (Classification, Control & Appeal) Rules, 1966 and issued a charge sheet to the petitioner, M.P. Ojha the Sub-
Inspector, Dewas, R.K. Singh Dy. S.P. (Azak-2) Dewas and G.S. Yadav, A.S.I. P.S. Kantaphod, District Dewas and Chandrapakash Head Constable, P.S. Piplarava, District Dewas alleging violation of Rule 64 of the M.P. Police Regulation and Rule 3 of the M.P. Civil
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Service (Classification, Control & Appeal) Rules, 1965. Shri Patne learned counsel has vehemently argued that issuance of show cause notice for conducting a Joint Departmental Enquiry along with the other delinquents is amounting to double jeopardy because the petitioner had already been punished by the disciplinary authority for the same misconduct. Regulation 270 of the M.P. Police Regulations is reproduced below:-
Section 270. (1) Every order of punishment or exoneration, whether original or appellate shall be liable to revision sou-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 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.
(5) [omitted].
6. It is clear from the aforesaid regulation that if the higher authority then the disciplinary authority and the appellate authority is not satisfied with the punishment imposed upon any police personnel such higher can take up the matter for revision in the exercise of suo-
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moto power. The decision for initiating a departmental enquiry has been taken by respondent No. 1 which is admittedly is the higher authority than respondent No. 2 i.e. Superintendent of Police, Dewas who imposed the punishment of 'censure'. The procedure for exercising the revision of the punishment order is not given in section 270 of the M.P. Police Regulation. Regulation 270(3) says that for the exercise of revisional powers the regulations 266, 267, 268 and 271 of the M.P. Police Regulation will apply. Regulation 270(4) gives powers to the revisional authorities either to exonerate or modify or enhance fresh enquiry or for fresh evidence subject to the notice to the interested party. In order to revise the punishment, a fresh enquiry can be ordered in a given fact and circumstances.
7. Therefore, respondent no.1 being a superior and competent authority in the exercise of the powers of revision under provisions of regulation 270 of the M.P. Police Regulation found that the punishment given to the petitioner by respondent No.2 is insufficient as compared to the misconduct committed by him . The order passed by the Superintendent of Police, Dewas was not the final order and the same was subjected to revision by the higher authorities. Since the higher authority i.e. respondent No.1 opined that the punishment imposed on the petitioner was not proportionate to the misconduct hence decided to punish him with rigour punishment along with the other police personal therefore by conducting a joint enquiry. Earlier the punishment imposed was a minor punishment without departmental enquiry and now by way of departmental enquiry, the punishment of stoppage of one increment with cumulative effect has been imposed. Since other police personal have been found involved in this case hence regular Departmental Enquiry was needed. The petitioner has been included in the joint Departmental Enquiry by
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exercising revisional power under regulation 270. Hence there is double jeopardy to the petitioner, hence his sole contention to challenge the impugned order is hereby rejected.
Writ petition is dismissed. No order as to cost.
(VIVEK RUSIA) JUDGE Ajit AJIT Digitally signed by AJIT KAMALASANAN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, KAMALAS st=Madhya Pradesh, 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba 241effad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D61A1E E901C09EF29, ANAN serialNumber=7F0BEE2D78BD57DA058F3247441C 87E7E0817FB61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT KAMALASANAN Date: 2022.01.05 18:29:23 +05'30'