Madhya Pradesh High Court
Vikram Singh Rana vs State Of M.P. And Ors. on 20 April, 2006
Equivalent citations: 2007 (1) AJHAR (NOC) 293 (M.P.)
Author: Jitendra K. Maheshwari
Bench: Jitendra K. Maheshwari
ORDER Jitendra K. Maheshwari, J.
1. This petition has been filed challenging the show-cause notice Annexure A-3, dated 18-2-1999 and the show-cause notice Annexure A-4, dated 16-3-99 issued by respondent No. 2 to the petitioner. It is urged that issuance of such show-cause notice by the Appellate Authority after passing the order in appeal is illegal and without jurisdiction.
2. It is the case of the petitioner that he was served with a charge-sheet and after holding regular departmental enquiry the order of penalty Annexure A-l, dated 28-7-1998 was passed. By which penalty of withholding of two increments with cumulative effect has been ordered by respondent No. 3. Petitioner has filed an appeal challenging the order of respondent No. 3, before respondent No. 2. The Appellate Authority has rejected the appeal vide order dated 18-2-99 Annexure A-2 affirming the order of respondent No. 3. On the same date, i.e., 18-2-99, a show-cause notice was issued, to petitioner asking reply from him. In the notice it is mentioned that "I deem it proper to exercise the revisional jurisdiction on account of saddling the petitioner with penalty which is not commensurate with the gravity of charges".
3. After about three months, a show-cause notice has also been issued by the Appellate Authority as per Annexure A-4, dated 16-3-99 asking reply for enhancement of the penalty as removal from service in place of withholding of two increments with cumulative effect. The petitioner has filed this petition challenging the tenability of the show-cause notices, Annexures A-3 and A-4 issued by respondent No. 3. It is urged by the Counsel for the petitioner as per Para 270 of the M.P. Police Regulations, after deciding the appeal by the Appellate Authority, having no competence to issue the notice for exercising the suo motu revisional jurisdiction in the matter. It is further urged that notice as issued by the respondent No. 2 is wholly without jurisdiction and illegal, therefore, the action as proposed by respondent No. 2 is unwarranted and bad in law.
4. Counsel for the respondents have filed their return. In the return, it is said that the order passed by the Disciplinary Authority inflicting the penalty of withholding of two increments with cumulative effect was not proper punishment commensurate to the gravity of the charges which is found proved in the departmental enquiry. However, the Appellate Authority while rejecting the appeal has also exercised the revisional jurisdiction by issuing show-cause notices, Annexure A-3 and Annexure A-4 to the petitioner for enhancement of the penalty. It is urged that the powers as exercised by the Appellate Authority is in conformity with the provisions of Para 270 of the M.P. Police Regulation, therefore, interference by this Court is not called for.
5. Counsel for respondents has also raised the question of maintainability of the petition; it is urged, petition filed challenging the show-cause notice, is not maintainable and liable to be dismissed.
6. I have heard the learned Counsel for the parties and perused the record. On perusal of the record, it is not in dispute that the respondent No. 3 is the Disciplinary Authority who has passed the order inflicting penalty of withholding of two increments with cumulative effect against the petitioner as per order dated 28-7-98. It is also not in dispute that petitioner has preferred an appeal challenging such an order before respondent No. 2. The respondent No. 2 decided the appeal vide order dated 18-2-99 rejecting it, and affirming the order of the Disciplinary Authority. After passing the order by the Appellate Authority issuance of show-cause notice by him, on the same date, i.e., 18-2-99, stating that why the suo motu revisional powers should not be exercised; merely for enhancement of the penalty is not proper. It is said that punishment imposed by the Disciplinary Authority is not commensurate to the gravity of the charges. Thereafter another show-cause notice for proposed penalty was issued by respondent No. 2 on 16-3-99 to remove the petitioner from service. Both these notices have been challenged in the present case.
7. To advert the arguments as raised by the Counsel appearing for the parties which is based on Para 270 of the M.P. Police Regulations, it is necessary to reproduce the aforesaid provisions:
270. (1) Every order of punishment of exoneration, whether original or appellate shall be liable to revision suo 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 purposes of this clause, the expression "Final Appellate Authority" means the Final Authority empowered to hear an appeal under Police Regulations 262.
(3) The provisions of Regulations 266, 267, 268 and 271 shall, as nearly as may be, apply to an application for revision.
(4) The revising authority may for reasons to be recorded in writing exonerate or may remit, vary or enhance the punishment imposed or may order a fresh enquiry or 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.
Bare perusal of the aforesaid provisions it is apparent that all the orders of punishment of exoneration whether original or appellate are subject to revision suo motu by any authority superior to the authority making the order. It is further apparent that the Final Appellate Authority can exercise the power of revision on an application made in this behalf by the person against whom the order has been passed. By the explanation of Sub-clause (2) it is apparent that the Final Appellate Authority means Final Authority empowered to hear an appeal under the M.P. Police Regulation 262. The hearing of revision either suo motu or on an application to invoke the jurisdiction under Clause 270 (1) or 270 (2) shall be heard and decided after following the provisions of Regulations 266,267,268 and 271. Clause (4) specifies the competent of the Revisional Authority either to exonerate or remit or vary or enhance the punishment imposed upon the employee concerned or to pass an order for fresh enquiry but such an order can only be passed by issuing the show-cause notice and furnishing an opportunity of hearing.
8. To deal with the question of competence to issue the show-cause notice by respondent No. 2, it is necessary to take note of Para 262 of the Police Regulations. However, it is being reproduced hereinbelow:
262. Appeal.- Every officer against whom an order may be passed under Regulations 214 and who thinks himself wronged thereby shall be entitled to prefer an appeal against such order to the authority immediately superior to the officer who passed the order of punishment; and if the appeal is from an officer of the rank of Inspector or of an equivalent rank and the appeal relates to an order than referred to in sub-head (1) of Regulations 214 and is rejected by the Appellate Authority, he may prefer a second appeal to the State Government:
Provided that a probationer shall have no right of appeal against the orders of his discharge if he has been given an opportunity to show cause against the discharge and his reply duly considered as required by the rule contained in Police Regulations 228-A. Note : In the case of the within the meaning of explanation 1 to Regulation 214 of a person appointed on probation, before the termination of his probation no appeal will lie.
The aforesaid indicate that if an Officer of the rank of Inspector or of equivalent rank can challenge the order passed by the Appellate Authority by preferring a second appeal to the State Government. Thus, it is apparent that in the case of an employee to the rank of Inspector the State Government is the Final Appellate Authority.
9. In the present case, petitioner is holding the post of Assistant Sub Inspector who was punished by respondent No. 3 in exercise of the disciplinary powers. He has preferred an appeal as per Clause 262 of the M.P. Police Regulations to the immediate superior, i.e., respondent No. 2. The respondent No. 2 has passed the final order on 18-2-99 in exercise of the appellate jurisdiction. After passing the final order, such Appellate Authority has issued the show-cause notice Annexure A-3 and the notice of proposed penalty Annexure A-4 in exercise of the suo motu revisional jurisdiction. In the facts of the present case wherein, penalty is ordered to the officer of the rank of Inspector is under challenged.
10. The power of suo motu revision can be exercised by any authority superior to the authority making the order, whether original or appellate. Thus respondent No. 2, who has passed the appellate order, cannot exercise the power of suo motu revision, to his own order. The power of suo motu revision of the order of Appellate Authority, i.e., respondent No. 2, can be exercised by the authority superior to him, and not by the Appellate Authority itself, as per the requirement of Clause (1) of Para 270 of the M.P. Police Regulation. It is however seen from the record that Annexure A-3 is a show-cause notice issued in exercise of suo motu powers by the Appellate Authority. Bare reading of Clause 270 (1), it is apparent that the authority who is exercising the suo motu powers of revision must be superior to the authority, making the order. In the present case, respondent No. 3 has passed the order which was challenged before the Appellate Authority, i.e., respondent No. 2. The Appellate Authority, i.e., respondent No. 2 has passed the final order on 18-2-99, thereafter he has no jurisdiction to invoke the power under Clause 270 (1) of the Police Regulations. Clause 270 (2) of the M.P. Police Regulation deals to those cases in which an application is made on behalf of the person against whom the order has been passed. On the application of such persons Final Appellate Authority can entertain the revision assailing the validity of the order passed either original or in exercise of appellate jurisdiction.
11. In view of the specific provisions under Clauses (1) and (2) of Para 270 of the M.P. Police Regulations, it is apparent that either suo motu power of the revision or on an application of the person aggrieved, the authority should be superior from the authority making the order. Thus the intention of the legislature is apparent from the wording of the language of Clauses (1) and (2) of Para 270 of the M.P. Police Regulation. The Revisional Authority exercising the jurisdiction ought to be superior or Final Appellate Authority, for the purposes of Para 270 Clauses (1) and (2) of the M.P. Police Regulation. Those authorities are required to pass the orders in strict observance of Clauses (3) and (4) of Para 270 of the Regulation. In this case, Appellate Authority has issued the show-cause notice, who is not superior to the authority making the order, therefore, show-cause notice issued by such authority in exercise of suo motu power of revision, is out of his competence.
12. Now, dealing with the question, towards maintainability of petition as raised by the Counsel for respondent; it is suffice to say, if the initiation of action by respondent is illegal and without jurisdiction, interference by this Court is open to challenge. This question has been dealt with by Hon'ble Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. . Thus contention of the respondent regarding maintainability is meritless.
13. In view of the foregoing discussion, the show-cause notice by respondent No. 2 Annexures A-3 and A-4 is illegal and without jurisdiction and against the provisions of Clause 270 of the Police Regulations. In such a circumstance, the show-cause notice Annexures A-3 and A-4, dated 18-2-1999 and 16-3-1999, issued by respondent No. 2 are quashed. It is seen from the record that the learned Tribunal has granted the stay vide order dated 8-4-99 and directed the respondent to not to proceed further pursuant to such notice. In such circumstances, no consequential order is required to be passed by this Court.
14. In the result, petition succeeds and is hereby allowed. The show-cause notices Annexures A-3 and A-4, dated 18-2-99 and 16-3-99 are hereby quashed. It is clarified that the order Annexures A-1 and A-2, dated 28-7-98 and 18-2-99 have not been challenged by the petitioner, therefore, they be treated as valid orders and the steps may be taken accordingly. In the circumstances of the case, there is no order as to cost.