Madhya Pradesh High Court
B.L. Dhuvkariya vs The State Of Madhya Pradesh on 27 February, 2017
1 W.P. No.751/2016
HIGH COURT OF MADHYA PRADESH: PRINCIPAL
SEAT AT JABALPUR
Writ Petition No.751/2016
B.L. Dhuvkariya
Vs.
State of M.P. & others
Present: Justice Sujoy Paul
Shri D.K. Tripathi, learned counsel for the petitioner.
Shri Pushpendra Yadav, learned Govt. Advocate for
the respondents/State.
ORDER
(27/02/2017) In this petition filed under Article 226 of the Constitution, challenge is made to the charge-sheet dated 30.09.2014 (Annexure-P/1) on twin grounds. Firstly, it is submitted that a joint charge-sheet is issued against the petitioner and one Shri Vidyadhar Dwivedi (Head Constable). By taking this Court to Rule 18 of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 (hereinafter referred to as 'the Rules of 1966'), it is submitted that a common inquiry is impermissible unless conditions mentioned in Rule 18 of the 2 W.P. No.751/2016 Rules of 1966 are satisfied. It is submitted that the competent authority to inflict the punishment of dismissal on the petitioner is the then Inspector General of Police (now re-designated as Director General of Police). The Superintendent of Police may be competent to initiate the departmental inquiry but he is not competent to impose the punishment of dismissal from service. In that eventuality, for instituting common proceeding, the requirement of Rule 18 of the Rules of 1966 should have been complied with. Secondly, it is submitted that the charge-sheet is issued for an incident which had taken place between 2001 to 2004. It is assailed on the ground that in absence of any justifiable explanation of delay, the charge-sheet is required to be set aside. Reliance is placed on AIR 1990 SC 1308 ( State of M.P. Vs. Bani Singh and others ) and on 2011 (1) MPLJ 666 (Pramod Kumar Gupta Vs. State of M.P. and others) and 2003 (4) MPLJ 183 (Sadashiv Shivram Garud Vs. Food Corporation of India).
2. Shri Tripathi, during the course of arguments, relied on the circular dated 31.07.2008 (Annexure-P/2). It is submitted that the subject of this circular shows that it deals with departmental inquiries for the Police Personnel on the rank of Inspector. Shri Tripathi submits that as per this circular for 3 W.P. No.751/2016 conducting joint enquiry, the requirement of Rule 18 of the Rules of 1966 is to be fulfilled. The document dated 01.10.2001 (Annexure-P/4) is relied upon to contend that one such inquiry in which requirement of Rule 18 of the Rules of 1966 was not complied with, was filed/closed.
3. Per contra, Shri Pushpendra Yadav, learned Govt. Advocate opposed the said contention by contending that as per the Division Bench order of this Court, reported in 2013 (3) MPLJ 508 (Arun Prakash Yadav Vs. State of Madhya Pradesh), the Rules of 1966 are not applicable. Once the Rules of 1966 are not applicable, Rule 18 of the said Rules, which prescribes method of conducting joint inquiry, is of no assistance to the petitioner. Shri Yadav submits that the Circular dated 31.07.2008 was issued prior to the judgment of Arun Prakash (spra). After the said judgment, the said circular is of no help to the petitioner. He further submits that the scope of judicial review against the charge-sheet is limited. The charge-sheet is not an order. It is only a notice against which a reply can be filed. Petitioner can take all objections including the objection of delay while filing the reply. At this stage, no interference may be made against the charge-sheet.
4. No other point is pressed by learned counsel for the 4 W.P. No.751/2016 parties.
5. I have heard learned counsel for the petitioner and perused the record.
6. In view of stand taken by the parties, following questions emerged for consideration:-
(i) Whether the Charge-sheet in the present case can be quashed on the ground of delay in issuing of the Charge-sheet.
(ii) Whether the Charge-sheet issued to two employees is bad in law in absence of an order passed under Rule 18 of the M.P.C.S. (C.C.A.) Rules, 1966 (for holding joint inquiry).
As to Question No.1
7. No doubt, in the case of Bani Singh (supra) the Apex Court held that the Charge-sheet can be set aside if there is no explanation of delay in issuing the Charge-sheet. In other words, the Charge-sheet can be quashed in absence of showing justifiable reasons for the same. However, the said judgment was again considered by Supreme Court in (1995) 2 SCC 570 (State of Punjab & Ors. vs. Chaman Lal Goyal) . The Apex Court held that when court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges, or the conviction, as the case may be, will be quashed. At the same time, it was held that this is not the only course open to the 5 W.P. No.751/2016 court and that in a given case, the nature of offence and other circumstances may be such that quashing of proceedings may not be in the interest of justice. In such a case, it has been observed that it is open to the Court to make such appropriate order as it finds just and equitable in the circumstances of the case. In Para 12 of the judgment of Chaman Lal Goyal (supra), the principle of balancing process was applied and it was opined that in a particular case it will not be justifiable to quash the Charge-sheet. In the particular case directions in the interest of justice may be issued to complete the enquiry within a reasonable time. In this view of the matter, it is clear that as a straight jacket formula it cannot be said that Charge-sheet can be set aside solely on the ground of delay in issuing the Charge- sheet. The gravity of charge is a relevant factor, which is required to be taken into consideration while deciding the question of interference against a Charge-sheet. This Court followed the principles laid down in the case of R.S. Kumpawat vs. C.M.P. Gramin Bank passed in WP. No.18100/15.
8. In the present case, the charge against the petitioner reads as under:-
nks"kkjksi & 6 W.P. No.751/2016 ¼1½ fujh- ch-,y- /kqodkfj;k ds fo:)& ^^Fkkuk gjikyiqj esa fnukad 06-10-01 dks bLr-Ø-&03@01 /kkjk 102 tkQkS esa jkexksiky jk; fuoklh gjikyiqj ls tIr 32 cksj fjokYoj ua-
&004243 ,Q,l,y lkxj ls ijh{k.k mijkar fnukad 26-09-02 dks Fkkuk esa okil izkIr gksus ij mls iqu% eky[kkuk jftLVj esa bUnzkt dh rLnhd u djuk ,oa fnukad 21-01-04 dks LFkkukarj.k gks tkus ij mifujh- rgtho dkth dks pktZ esa mDr fjokYoj u nsdj gsjk&Qsjh dj mls eky[kkuk ls xk;c djkdj drZO; ds izfr ?kksj ykijokgh] xSjftEesnkjkuk ,oa lafnX/k vkpj.k iznf'kZr djuk^^
9. A bare perusal of the charge shows that the allegations against the petitioner are very grave. Thus, in the peculiar facts and circumstances of this case I am not inclined to set aside the Charge-sheet only on the ground of delay in issuing the Charge- sheet. I am only inclined to direct the respondents to complete the enquiry within six months from the date of production of copy of this order. However, this order will be subject to cooperation of the petitioner in the enquiry. As to Question No.2
10. No doubt, Rule 18 of the CCA Rules prescribes the procedure for conducting joint enquiry. The core issue is whether CCA Rules are applicable to the petitioner (Inspector) ?
11. No doubt, earlier a view was taken that for conducting joint enquiry against the Inspector, the procedure laid down in Rule 18 is to be followed. However, the question of applicability of CCA Rules on Inspector and other employees came up for consideration before a Division Bench of this Court in the case of Arun Prakash Yadav (supra). The Division Bench opined as 7 W.P. No.751/2016 under:-
"14. The contention of the learned counsel for petitioner that mere declaration of the post of Inspector as Gazetted Class-II inducts the post of Inspector into the Gazetted service constituted under the Gazetted Rules, deserves outright rejection for the reason that the Gazetted Rules categorically prescribe three kinds of persons forming the Gazetted cadre under Rule 4 which does not contemplate a fourth kind (i.e. Inspector) who claims his existence in the Gazetted service merely by implication based upon declaration of Inspector as gazetted. If such a course of action of induction by implication is permitted, then the sanctity of the Recruitment Rules shall stand eroded and arbitrariness will come into play bestowing unbridled power to the executive of making recruitment by a mode foreign to the recruitment rules by merely getting an executive order passed in favour of a select few without amending the Recruitment Rules. Moreover, it is further to be seen that the post of Inspector of Police continues till date to be the feeder post for filing up the Gazetted cadre comprising of the posts of various nomenclature falling broadly under three categories of SP, Additional SP and Dy. SP comprised under the Gazetted Rules. Accordingly, this Court is of the considered view that the first contention of the learned counsel for petitioner of seeking induction of the post of Inspector of Police by implication into the Gazetted cadre constituted under the Gazetted Rules deserves to be and is, therefore rejected.
15. Coming to the next contention of the learned counsel for petitioner about the contents of the Schedule to the Rules of 1966, it is noticed that the posts falling under Class-III (Non- Ministerial) Cadre in the Department of Police are provided by the said Schedule to be governed by the Police Regulation and not by the Rules of 1966. The said remark made in the sub-heading of "Home Department (Police)" in the Schedule appended to the rules of 1966 is in fact 8 W.P. No.751/2016 against the petitioner. Once this Court has held that induction into the Gazetted Cadre of the posts of Inspector of Police cannot take place by implication, the post of Inspector of Police, which as per the Schedule-II of Rules of 1966 belongs to Class-III (Non-Ministerial) category, shall necessarily be governed by the Police Regulations and, therefore the contention of the petitioner that the competence of an authority to initiate disciplinary proceedings against an Inspector of Police ought to be tested on the anvil of Rules of 1966, in unsustainable."
(Emphasis supplied)
12. As laid down in Arun Prakash Yadav (supra), it is crystal clear that the protective umbrella of CCA Rules are not applicable to the Inspector. Once, it is held that the entire set of rules (CCA Rules) are not applicable to Inspector, in particular Rule 18 of the said rules cannot be made applicable. Thus, the Charge-sheet/enquiry cannot be set aside on the alleged violation of Rule 18 of the CCA Rules. So far as the Circular dated 31-07-2008 (Annexure P/2) is concerned, it was issued as per legal position prevailing before the delivery of order in the case of Arun Prakash Yadav (supra). Thus, such executive instruction is of no assistance to the petitioner because the Division Bench in no uncertain terms made it clear that CCA Rules are not applicable to the post of Inspector. An executive 9 W.P. No.751/2016 instruction which is based on CCA Rules cannot improve the case of the petitioner.
13. On the basis of foregoing analysis, the Charge- sheet/disciplinary proceedings against the petitioner cannot be quashed. However, in the interest of justice it is directed that the respondents shall expedite and complete the departmental enquiry against the petitioner within six months. This order will be subject to cooperation of the delinquent employees in the departmental enquiry.
14. With the aforesaid observations, this petition is disposed of. No cost.
(Sujoy Paul) Judge Biswal & mohsin