Indian Kanoon - Search engine for Indian Law

Madhya Pradesh High Court

Sanjay Singh vs The Director General Of Police Police ... on 9 May, 2017

                           WP-18904-2012
 (SANJAY SINGH Vs THE DIRECTOR GENERAL OF POLICE POLICE HEADQUARTERS JAIL
                             ROAD JABALPUR)


09-05-2017
                             ORDER

(09.05.2017.) Per : Sujoy Paul J.

This petition filed under Article 226 of the Constitution challenges the order dated 23.4.2012 whereby petitioner was dismissed from service. The appellate order dated 13.9.2012 is also under challenge whereby appeal of the petitioner was dismissed.

2. Petitioner was working as Head Constable in the respondent department. The case of the petitioner is that while remained posted in General Canteen of the Unit, some amount was found deficit in the balance sheet and stock register. Likewise, in the month of July, 2009, in the balance stock of the articles, an amount of Rs.4,02,763/- was shown but while tallying with the balance sheet, the cost of articles were shown as Rs.2,60,732.35/-. Therefore, an amount of Rs.1,42,030.65/- was shown in excess. Certain defects were found in the stock register which also resulted in the allegation of loss of articles etc.

3. Shri Jai Shukla, learned counsel for the petitioner submits that initially an audit/ investigation report was prepared by two officers on 6.02.2011 (Annexure P/1). Petitioner promptly filed his response (Annexure P/2) and apprised the authorities that the charge of canteen was given to the petitioner by one Shri Ram Prakash Tiwari. Petitioner is making entries in the relevant registers from the date charge was taken by him from said Shri Tiwari. Petitioner has made only further entries on the basis of earlier entries made by said Shri Tiwari. Hence, if there exists any discrepancy in counting etc, the petitioner is not responsible and the matter may be inquired from Shri Ram Prakash Tiwari.

4. It is submitted that by charge sheet dated 11.8.2011, the petitioner and one Shri Aniruddh Singh were subjected to disciplinary proceedings and allegations of financial irregularities were made against them. The petitioner denied the charges and pleaded innocence.

5. Learned counsel for the petitioner submits that no notice for conducting departmental inquiry was served on the petitioner and, therefore, respondents have committed an error in proceeding with the inquiry ex-parte. It is submitted that after recording statements of prosecution witnesses in the inquiry, the petitioner came to know about the pending inquiry and then appeared before the Inquiry Officer on his own. He preferred an application before the Inquiry Officer to summon Shri Ram Prakash Tiwari for recording their statement. Reliance is placed on the said application (Annexure P/15). It is submitted that the Inquiry Officer did not decide the said application and closed the inquiry. It is urged that a valuable right of defense of the petitioner was infringed because of non-summoning the material witness. Reliance is placed in the case of Umakant Dwivedi Vs. State of M.P-(2012) 1 MPLJ-225 and Union of India and Others Vs. Prakash Kumar Tandon-(2009) 2 SCC-541.

6. The next submission of learned counsel for the petitioner is that the charge sheet shows that allegations against the petitioner were relating to financial irregularities but there was no allegation of embezzlement (xcu) against the petitioner. Yet, the disciplinary authority while inflicting the punishment opined that petitioner is guilty of embezzlement (xcu). He submits that petitioner was punished for something which was not the charge against him. Reliance is placed on the judgment of Supreme Court in the case of M.V.Bijlani Vs. Union of India and others-2006(5) SCC 88.

7. It is further urged that the charge sheet shows that allegations against the petitioner are related to negligence and no allegation of ulterior motive was made against the petitioner. Thus, the finding about misappropriation/ embezzlement and punishment based thereupon, is wholly unwarranted. In this connection it is submitted that punishment is disproportionate in nature. Reliance is placed on the judgment of Supreme Court in the case of Dev Singh Vs. Punjab Tourism Development Corporation Ltd. and another-(2003) 8 SCC-9, Girish Bhushan Goyal Vs. BHEL and another-(2014) 1 SCC-82 and H.L.Gulati Vs. Union of India and others-(2015) 12 SCC-408.

8. The next contention of learned counsel for the petitioner is that the allegations against the co- delinquent Shri Aniruddh Singh were almost same but he was inflicted with small punishment of reduction of pay by one stage with cumulative effect whereas petitioner was dismissed from service. He submits that different punishments are imposed on similarly situated persons which is violative of Article 14 of the Constitution. Reliance is placed on judgment of Supreme Court in the case of Rajendra Yadav Vs. State of M.P and others-(2013) 3 SCC-73 and Lucknow Kshetriya Gramin Bank and another Vs. Rajendra Singh-(2013) 12 SCC-372. Counsel for the petitioner submits that the appellate authority without considering the grounds raised by the petitioner rejected the appeal which is bad in law. It is submitted that it runs contrary to the judgment of Supreme Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and others-(2009) 4 SCC-240.

9. Per contra, Smt Sonali Shrivastav, learned Panel lawyer for the State supported the punishment order and the appellate order. She placed reliance on various paragraphs of the return and contended that there was no flaw in the departmental inquiry. Despite issuance of repeated notices by registered post and through departmental mechanism, the petitioner deliberately did not turn-up in the inquiry. Having left with no option, the Inquiry Officer proceeded ex-parte. Later-on, the petitioner, on his own, appeared and participated in the inquiry. She submits that the Inquiry Officer has afforded proper opportunity to the petitioner. The findings of Inquiry Officer are based on evidence. He has prepared a reasoned report. The petitioner was given opportunity to file his reply to the Inquiry Officer's report. His reply was considered by the disciplinary authority while imposing the punishment. The appellate authority has also passed a reasoned order which does not suffer from any infirmity. She produced the original record of the departmental inquiry for perusal of this court.

10. Parties confined their arguments to the extent indicated hereinabove.

11. This is trite law that scope of interference in the disciplinary proceedings by this court is limited. Interference can be made if decision making process is defective or contrary to the principles of natural justice which has caused serious prejudice to the delinquent employee. Judicial review is confined to the decision making process and not on the decision. {See :Apparel Promotion Council Vs. A.K.Chopra-(1999) 1 SCC 759, State Bank of India Vs. T.Jogram-(2007) 7 SCC-236 and State of U.P. Vs. Manmohan Nath Sinha-(2009) 8 SCC-310}. The Inquiry Officer's report and the punishment order can be interfered with if the same are perverse in nature. The scope of interference on the ultimate punishment is also very limited. If the punishment shocks the conscience of the court or it is wholly impermissible, interference can be made. Parity amongst delinquent, indeed, is a ground for interference. Appellate authority's order can be interfered with if it does not contain adequate reasons.

12. The present departmental inquiry is required to be tested on the basis of aforesaid acid test. The original record of inquiry shows that the Inquiry Officer received the file for joint inquiry against the petitioner and Shri Aniruddh Singh on 11.11.2011. Both the delinquent employees were directed to submit their reply. On 18.11.2011, it was informed that Aniruddh Singh is undergoing a training at Indore and petitioner has not received the notice, hence inquiry was adjourned for 26.11.2011. On the said date, it was again adjourned to secure presence of both the delinquent employees. On 28.11.2011, the petitioner was absent. The petitioner's Controlling Authority, Commandant 6 t h Battalion SAF was requested to apprise the petitioner about the inquiry. On the next date i.e 5.12.2011, Shri Aniruddh Singh appeared before the Inquiry Officer but the petitioner remained absent. Hence, inquiry was fixed for 9.12.2011 and Commandant, Jabalpur was again requested to inform the petitioner. On 9.12.2011, petitioner remained absent. The matter was fixed for 13.12.2011. Similar request was made to the Commandant. On 13.12.2011, Shri Aniruddh Singh appeared but the petitioner remained absent. Hence statements of witnesses were not recorded. Yet another request was made to Commandant, Jabalpur for sending the petitioner in the inquiry. On the next date i.e 14.12.2011, the Presenting Officer informed that the present petitioner has refused to accept/ take the notice. The inquiry was fixed for 14.12.2011. He was directed to appear before the Inquiry Officer on the next date, failing which inquiry may proceed ex-parte. On 19.12.2011 also the petitioner did not turn-up. The statement of witnesses were recorded ex-parte on 19.12.2011 and copies of those statements of witnesses were sent to the petitioner. On 20.12.2011, the petitioner remained absent and notices were directed to be issued for his presence by registered post. The petitioner did not participate in the inquiry on 21.12.2011 also for which again notices were directed to be issued. On 29.12.2011, the petitioner appeared on his own and his statement was recorded. He prayed for two days time to submit the defense documents which was granted to him. Pertinently, petitioners did not prefer any application nor made any oral prayer for recalling the prosecution witnesses for cross-examination, whose statements were earlier recorded. This important order sheet dated 29.12.2011 shows that the statement of prosecution witnesses were provided by the Inquiry Officer to the petitioner.

13. The petitioner appeared on 30.12.2011 and statement of defense witness Shri Prasad was recorded. Another witness was not present hence inquiry was adjourned for 05.01.2012. The petitioner did not turn-up on this date nor his witnesses entered the witness-box. The Inquiry Officer closed the inquiry for preparation of inquiry report.

14. The aforesaid factual matrix shows that ample opportunities were given by the Inquiry Officer to the petitioner to participate in the inquiry. Despite issuance of notices by departmental authorities, petitioner did not turn-up in the inquiry. Petitioner has not questioned the specific findings recorded in the proceedings of the inquiry that notices were served through departmental authorities to the petitioner but he refused to accept it. The notices were also issued through registered post. In such cases there is presumption of service on the other side. { See: State of U.P Vs. T.P.Lal Shrivastav- (1996) 10 SCC 702, Attabira Regulated Market Committee Vs. Ganesh Rice Mills-(1996) 9 SCC-471, Dilwan Singh Vs. State of Haryana- (1996) 8 SCC 369 and Coal India Ltd Vs. Ananta Saha-(2011) 5 SCC-142}. The petitioner has not given any justification of his appearance on his own in the later part of the inquiry. If no notices were served on him and he did not have any knowledge about the inquiry, how he appeared and participated in the inquiry in the second part, is not explained by him. In this backdrop, I am unable to hold that notices were not served on the petitioner or he did not have knowledge about the inquiry which was going on. I am of the view that there is no flaw in the inquiry inasmuch as it was proceeded ex-parte. Pausing here for a moment, the inquiry record nowhere shows that petitioner ever produced any application (Annexure P/15) for summoning Shri Ram Prakash Tiwari. The said application filed along with this petition does not contain any acknowledgment of the Inquiry Officer nor it contains any date. Hence, the petitioner has miserably failed to prove that any such application was actually given by him to the Inquiry Officer. Thus, for this reason, I am unable to hold that the Inquiry is vitiated. In absence of establishing the factum of submission of aforesaid application, the judgment of this court in Umakant Dwivedi and of Supreme Court in Prakash Kumar Tandon (supra) are of no assistance to the petitioner.

15. Before dealing with the next point raised by the petitioner, it is condign to refer to the charge against the petitioner and the co-delinquent in juxtaposition :-

Jh lat; flag Jh vfu:) flag vkjksih dzeakd 01 iz-vkj- 859 1- pktZ fyLV xkSlokjk esa cpr lkexzh dh dher :i;s vkjksih dzekad 02 iz-vkj- 738 4]02]763¾00 n'kZ;k x;k tcfd cSysal lhV ds vuqlkj lkexzh dh 1- ekg 08@09 cSysal lhV ds dher :i;s 260732¾35 ik;h xbZ xkslokjk esa dqy iawth :i;s tks fd :i;s 142030¾65 T;knk 422865¾60 iznf'kZr dh xbZ] vafdr dj xkSlokjk rS;kj dj tcfd ekg 07@09 dh dqy iwath foRrh; vfu;ferk djukA :i;s 5]28]375¾00 crkbZ xbZ] ftlesa buds }kjk :i;s 2- MsM Lvkd jftLVj ds cSysal 1]05]510¾40 lh/ks de djrs gq;s lhV ist dza- 82 ,oa 83 esa vafdr ekg 08@09 ds xkslokjs esa vafdr lkexzh dk ;ksx dher fd;k x;k rFkk mDr /kujkf'k dh 40204¾00 gS] cSyaasl lhV ds deh fd;s tkus dk dksbZ Hkh xkSlokjk esa jkf'k 41974¾00 mi;qZDr dkj.k cSysal lhV esa dh MsM LVkd lkexzh fy[kh x;h mYys[k u djuk vkSj u gh ofj"B gS] tks ewy dher ls :i;s vf/kdkfj;ksa ds laKku esa ykuk] 1770¾00 vf/kd vafdr fd;k x;k foRrh; vfu;ferrk dk ifjpk;d gSA gSA blh izdkj ekg 07@09 dh cSysal lhV o LVkd jftLVj esa vafdr lkexzh dk feyku u gksuk ?kksj ykijokgh dk ifjpk;d gSA A careful reading of the allegations against the aforesaid employees makes it clear that allegations against them are relating to negligence and financial irregularities. The Inquiry Officer in his report found that the charge alleged against the said employees are established. The disciplinary authority by order dated 23.4.2012 found that the allegations which are established against the petitioner are relating to financial irregularity and embezzlement (xcu). Accordingly, the punishment of dismissal from service was inflicted on the petitioner. In addition, the alleged amount of embezzlement Rs.1,42,030.65/- was directed to be recovered from the petitioner. This is settled in law that an employee cannot be punished for an allegation which is not subject matter of the charge-sheet. This view was taken by the Supreme Court way back in Laxmi Devi Sugar Mills Vs. Nand Kishore Singh-AIR 1957 SC-7. The same view was taken in the case of M.V.Bijlani (supra). Hence, I find substantial force in the argument of Shri Jai Shukla that petitioner has been punished for allegation of `embezzlement' which was not the subject matter of the charge. In my view every financial irregularity does not mean or lead to embezzlement whereas every `embezzlement' is the result of financial irregularity. I find support in my view from dictionary meaning of the said words. In The Law Lexicon, the word “Embezzle” and “Embezzlement” is defined as under :-

3. “Embezzle”- Divert funds fraudulently to one's own use. “when a clerk or a servant, or person employed in the capacity of a clerk or servant, commits theft by converting any chattel, money, or valuable security, delivered to or received, or taken into possession by him for or in the name or on account of his master or employer, his offence is called Embezzlement”.

(Steph.Cr.Law Ch.36 See Theft.” “Embezzlement And Larceny or Theft.- Embezzlement is a fraudulent appropriation of another's property by a person to whom it has been instrusted or into whose hands it has lawfully come. It differs from larceny or theft in that the original taking of the property was lawful or with the consent of the owner, while in larceny or theft the felonious intent must have existed at the time of taking.

Embezzlement is distinguished from larceny, properly so called, as being committed in respect of property which is not at the time in the actual possession of the owner.

In Black's Law Dictionary, the word “Embezzlement” is defined as under :-

“Embezzlement.- The fraudulent appropriation of property by one lawfully entrusted with its possession. To “embezzle” means willfully to take or convert to one's own use, another's money or property, of which the wrongdoer acquired possession lawfully, by reason of some office or employment or position of trust. The element of “offence” are that there must be relationship such as that of employment or agency between the owner of the money and the defendant, the money alleged to have been embezzled must have come into the possession of defendant by virtue of that relationship and there must be an intentional and fraudulent appropriation or conversion of the money. State Vs. Thyfault, 121 NJ Super. 487,297 A.2d 873,879. The fraudulent conversion of the property or another by one who has lawful possession of the property and whose fraudulent conversion has been made punishable by statute. For federal crimes involving embezzlement. See 18 U.S.C.A 641 et seq. See also Conversion.

Compare Theft.” In The Law Lexicon, the word “irregularity” is defined as under :-

“Irregularity”.- A neglect of order or method; not according to the regulations : the doing of some act at an unreasonable time, or in an improper manner; the technical term for every defect in practical proceedings or the mode of conducting an action or defence, as distinguished from defects in pleading; a comprehensive term including all formal objections to practical proceedings. (Burrill.). Irregularity is the failure to observe that particular course of proceeding which, conformable with the practice of the Court, ought to have been observed.

An irregularity is defined to be the want of adherence to some prescribed rule or mode of proceeding; and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner. The quality of state of being irregular {S.461 Cr.PC and art.122(1), Const.}.

The word “irregularity' covers any case thing has not been done in the manner laid down by the statute irrespecting of what that matter might be. The word does not cover a case of procedural irregularity only.

Martin Burn Ltd. V. Calcutta Corporation, AIR 1966 SC 529 {Calcutta Municipal Act S.131(2)(b)}.” In Black's Law Dictionary, the word “irregularity” is defined as under :-

“Irregularity.- The doing or not doing that, in the conduct of a suit at law, which conformably with the practice of the court, ought or ought not to be done. Violation or nonobservance of established rules and practices. The want of adherence to some prescribed rule or mode of proceeding; consisting either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time or improper manner. The technical term for every defect in mechanics of proceedings, or the mode of conducting an action or defense, as distinguishable from defects in pleadings (See e.g Fed.R.Civil.P.32(d), irregularities in taking of deposition). Term is not synonymous with “illegality.” To this extent, there is serious flaw in the punishment order dated 23.4.2012 which was affirmed by the appellate authority.

16. The Apex Court in Union of India Vs. Gyan Chand Chattar-(2009) 12 SCC-78 opined that where serious charges like corruption are made, the charge should be specifically established. It is held that in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequence. Such a serious charge requires to be proved to the hilt as it brings civil and criminal consequence upon the employee concerned. The employee would be liable to be prosecuted and would also be liable to suffer the serious penalty awarded in such cases. Therefore, such a grave charge of quasi criminal nature is required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities. Similarly in Commissioner of Police Vs. Jai Bhagwan- (2011) 6 SCC-376, it was held that the allegations should be proved in accordance with law and suspicion cannot take place of proof. This Court in Suresh Chand Upadhyay Vs. Union of India-(2012) 1 MPLJ-102 followed the said principle. In view of this legal position, I have no hesitation in holding that petitioner has been wrongly punished for “embezzlement” (xcu) which was not the subject matter of charge.

17. The relevant portion of the charge-sheet issued to the delinquent employees reproduced hereinabove in juxtaposition shows that the allegations against the petitioner and co-delinquent employee were relating to “financial irregularities” and “negligence”. No doubt, the amount involved in the charge against the petitioner is more than the amount involved in the case of Aniruddh Singh. The basic charge against both of them was relating to “negligence” and “financial irregularity”. Yet the punishment imposed on both the employees are very different. As noticed, the petitioner was dismissed from service with further punishment of recovery whereas the co-delinquent employee was subjected to punishment of reduction of pay by one stage with cumulative effect.

18. This will not be out of place to mention here that for the purpose of conducting departmental inquiry and for imposition of punishment, the respondents are required to follow the Police Regulation. The respondents are bound by the statutory provision of the said Regulation. Regulation 226 deals with the punishment which reads as under :-

“226. Punishments – Offences for which given. – The following rules should be observed in determining what penalty should be awarded for any particular offence: -

(i) (a) Dismissal is the last resource and should, ordinarily not be inflicted until all other means of corrections have failed.

(b) If dismissal is considered too severe a punishment for sub- Inspector he should be removed from the service (This does not amount to dismissal.) Note – The vacancy of an officer dismissed should not be filled in the case of a constable or permanently in the case of a bead constable and above until the period of appeal has expired.

(ii) Reduction in rank is a suitable punishment for incompetence, or cases of serious dereliction of duty in which dismissal or removal is considered to be too severe a punishment As a general rule Sub-

Inspectors who are directly recruited should not be punished by reduction to Assistant Sub-Inspector. The reduction to Assistant Sub-Inspector or Sub- Inspector who were appointed by promotion from the rank of Head Constable or Assistant Sub Inspector is permitted.

(iii) With holding of increment either temporary or permanent (or grade reduction in the case of head Constables) is a suitable punishment for all cases of serious dereliction of duty.It may also be inflicted for culpable ignorance of police procedure, laziness or apathy in conducting the work of the police station , and the like. Fair warning should be given in every instance and opportunity for amendment afforded before the punishment is awarded. In the case of a constable the period of deprivation shall not exceed a year nor is it advisable that a constable should be deprived of more than or increment at a time. if After a departmental enquiry for a subsequent offence it is found advisable to inflict. This punishment on a constable already under reduction the proper order to pass is one extending the reduction by a period not exceeding one year. Note – When an officer in a graded posts is reduced permanently his place in the grade or to which he is reduced must be determined at the time of passing the order if reduction with due regard to the amount of punishment deserved.

(iv) An increment which has fallen due may be withheld for a definite period for inefficiency or unsatisfactory service. In the case of a constable, it shall not be withheld for more than one year in the first instance. If a subsequent offence justifies extension of this period, a departmental enquiry is necessary. Note:- In all case where orders are passed withdrawing or withholding an increment, it must be Cleary stated whether subsequent increments are to be postponed or not. In the cases of constables they should not be postponed.

(v) Fine is an appropriate punishment for repeated carelessness and disobedience of orders. Unpunctuality and the like. Fines should be moderate in amount; the loss of half a month’s pay is the utmost that should ever be inflicted, save in very exceptional circumstance. The fining of constables is prohibited.

(vi) In the case of head constables and constables, minor offences against discipline should be dealt with firstly, by warning, and if this proves ineffectual, by the infliction of the minor punishments specified in regulations 216 and 217 (b), or by detailing the offender to a course of more irksome and unpopular duties.

(vii) The transfer of a police officer to an unhealthy or unpopular post as a punishment is strictly forbidden.” (Emphasis supplied)

19. A Division Bench of this Court in Ganesh Kumar Sharma Vs. State of M.P-2013(2) MPLJ-402 held that dismissal is a punishment of last resort and should ordinarily not to be inflicted until all other means of corrections have failed. This principle was followed in the case of Purushottam Ivne Vs. State of M.P.-2014(3) MPLJ-704. The impugned punishment order shows that while taking final decision, the respondents have not applied mind in the light of Regulation 226 aforesaid.

20. In view of the aforegoing analysis, in my view, the punishment order is vitiated. The punishment was imposed for an allegation which was not the subject matter of charge. The disciplinary authority is required to apply its mind afresh by taking into account the aforesaid findings. While taking a fresh decision, the aspect of parity in imposing the punishment needs to be considered in view of the judgment of Supreme Court in the case of Rajendra Yadav and Rajendra Singh (supra). The disciplinary authority has to apply mind in the light of principle laid down in the case of Dev Singh (supra) wherein the Supreme Court has held that mere negligence without any ulterior motive cannot result into imposition of punishment of dismissal from service. The judgment passed in the case of Girish Bhushan Goyal and H.L.Gulati (supra) are also of the same line. The appellate authority has also not dealt with the aforesaid aspects and merely affirmed the order of the disciplinary authority.

21. Resultantly, the order of disciplinary authority dated 23.4.2012 (Annex.P/10) and appellate authority order dated 13.09.2012 (Annex P/13) are set aside. The matter is remitted back to the disciplinary authority to pass a fresh order in accordance with law within forty five days from the date of production of copy of this order. Petition is allowed to the extent indicated above.

(SUJOY PAUL) JUDGE MKL