Madhya Pradesh High Court
Rajkamal Pathya vs The State Of Madhya Pradesh on 27 August, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-GWL:14472
1 WP-18955-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 27th OF AUGUST, 2024
WRIT PETITION No. 18955 of 2023
RAJKAMAL PATHYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri M.P.S.Raghuwanshi - Senior Advocate with Shri Dharmendra
Singh Raghuwanshi - Advocate for petitioner.
Shri Ajay Kumar Nirankari - Government Advocate for
respondents/State
ORDER
The present petition has been filed seeking the following reliefs:
(i) That, the impugned order dated 20.06.2023 (Annexure P/1) and order dated 02.12.2022 (Annexure P/5) be directed to be quashed and set aside.
(ii) That, the petitioner be directed to be taken back/reinstated in service with all consequential benefits including arrears of salary with interest. at the rate of 12% per annum.
(iii) That, other relief which is just and proper in the facts and circumstances of the case may also be granted.
2. It is the case of the petitioner that he was working on the post of Constable in the police department and while he was posted at Police Station Tendua, he was placed under suspension vide order dated 02.04.2020. A charge-sheet was issued on 02.06.2020 levelling three charges against him. The petitioner submitted his reply and denied all the allegations levelled in Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/31/2024 7:59:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:14472 2 WP-18955-2023 the charge-sheet. The respondents/authorities conducted an enquiry and independent witnesses did not support the allegations. The enquiry officer himself acted as presenting officer, cross-examined the witnesses. The enquiry officer submitted its report. Thereafter, the Superintendent of Police, Shivpuri passed an order of penalty on 02.12.2022 stopping one increment with cumulative effect. Against which, the petitioner filed an appeal before the Director General of Police, Gwalior Zone, Gwalior and the said appeal is pending. On 29.03.2023, a notice was received by the petitioner issued by the respondent no.2 indicating the fact that the punishment imposed by the Superintendent of Police is not appropriate and as to why major punishment as provided under Para 214 of the Police Regulation be not imposed. The petitioner replied to the same and thereafter, the respondent no.2 has imposed a major punishment of dismissal from service vide order dated 20.06.2023, which is the order impugned in the present petition.
3. It is argued that the enquiry officer himself conducted the enquiry and acted as a presenting officer and cross-examined the witnesses, therefore, the entire enquiry stands vitiated on this ground alone. He has relied upon a judgment in the case of Ram Prakash Singh vs. State of M.P. and others, W.P.No.414 of 2002 decided on 16.11.2009 which has been affirmed by the Division Bench in W.A.No.200 of 2010 vide order dated 23.04.2010.
4. It is further submitted that where the police regulations are silent then the provisions of the Madhya Pradesh Civil Services (Classification, Control and Appeals) Rules, 1966 (hereinafter referred to as 'the Rules of 1966') are required to be taken note of. Rule 29 of the Rules of 1966 Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/31/2024 7:59:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:14472 3 WP-18955-2023 provides a limitation of six months to the authority to take suo motu cognizance in the matter from the date of passing of the order. Admittedly, the case in hand the order of penalty was passed on 02.12.2022 and the authority has passed a final order dated 20.06.2023 which beyond the period of six months. The aforesaid fact was considered by a coordinate Bench of this Court in the case of Sushil Kumar Shrivastava vs. State of M.P. and others reported in 2007(1) MPLJ 392; Krishnanarayan Shivpyare Dixit vs. State of M.P. and others reported in 1985 MPLJ 343 and in the case of Angad Singh Rathore vs. State of M.P. and others reported in 2010(1) MPLJ 171.
5. Learned counsel appearing for the respondents/State has though the supported the order impugned, but he could not dispute the fact that the order impugned has been passed by the authorities and suo motu cognizance in the matter has been taken after a period of six months. He fairly accepts the fact that if the Police Regulations are silent, then the provisions are to be borrowed from the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966.
6. From the perusal of the aforesaid, it is apparently clear that the enquiry officer himself has acted as a prosecutor in the case and has cross- examined the witnesses which is not permissible in law. The aforesaid aspect was considered in the case of Ram Prakash Singh (supra) wherein the case of Union of India vs K.D. Pandey reported in (2002) 10 SCC 471 was taken note of and it has been held as under :
"In the present case, no Presenting Officer was appointed by the Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/31/2024 7:59:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:14472 4 WP-18955-2023 disciplinary authority and the subsequent enquiry officer himself has acted as Presenting Officer, meaning thereby, as a prosecutor. The enquiry officer has handed over the written questionnaire to the witnesses and on the basis of written questionnaire, the enquiry has been concluded in the matter. ....
8. The Apex Court in the case of Union of India vs K.D. Pandey and another (2002) 10 SCC 471 in paragraph 5 has held as under -
5. Learned counsel for the appellant contended that in this case the Board had examined the material on record and come to the conclusion that four of the six charges could be proved on the available material, which had not been properly examined in the earlier inquiry. In fact from the order made by the Railway Board as well as from that part of the file where the inquiry report made earlier is discussed, it is clear that specific findings have been given in respect of each of the charges after discussing the matter and, if that is so, we fail to understand as to how there could have been a remit to the inquiry authority for further inquiry. Indeed this resulted in second inquiry and not in a further inquiry on the same set of charges and the material on record. If this process is allowed the inquiries can go on perpetually until the view of the inquiry authority is in accord with that of the disciplinary authority and it would be abuse of the process of law. In that view of the matter we think that the order made by the High Court affirming the order of the Tribunal is just and proper and, therefore, we decline to interfere with the same. The appeal is dismissed accordingly.
11. Keeping in view the aforesaid judgments, as it is evident in the present case that the enquiry officer has acted as a prosecutor in the subsequent enquiry conducted in the matter and therefore, the same deserves to be and is hereby quashed. Resultantly, the writ petition is allowed with the following directions :
(a) The impugned order of compulsory retirement dated 03.11.2001 and the order passed by the appellate authority dated Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/31/2024 7:59:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:14472 5 WP-18955-2023 28.02.2002 are hereby quashed.
(b) The respondents are directed to reinstate the petitioner back in service forthwith. The respondents are directed to grant the consequential benefits to the petitioner i.e. annual increments, 50% back wages and subsequent promotions, in case any junior has been considered and promoted to the next higher post.
(c) The aforesaid exercise of granting back wages, notional fixation of salary, increments, consequential promotion, if any, shall be concluded within a period of six months from the date of receipt of a certified copy of this order.
The similar is the situation in the present case. Therefore, the impugned order dated 02.12.2022 is unsustainable as the enquiry officer has acted as a prosecutor and cross-examined the prosecution witnesses.
7. Adverting to the other argument with regard to Rule 29 of the Rules of 1966 it may apposite to reproduce the Rule 29 of the Rules of 1966 which reads as under:
"29. (1) Notwithstanding anything contained in these rules except Rule 11-
(i) the Governor; or
(ii) the head of a department directly under the State Government, in the case of a Government servant serving in a department or office (not being the secretariat), under the control of such head of a department, or
(iii) the appellate authority, within six months of the date of the order proposed to be reviewed, or
(iv) any other authority specified in this behalf by the Governor by a general or special order, and within such time as may be prescribed in such general or special order may at any time, either on his or its own motion or otherwise call for the records of any inquiry and review any order made under these rules or under the rules repealed by Rule 34 from which an appeal is allowed but from which no appeal has been preferred or from, which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/31/2024 7:59:21 PM
NEUTRAL CITATION NO. 2024:MPHC-GWL:14472 6 WP-18955-2023
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit:
Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose; any of the penalties specified in clauses (v) to (ix) of Rule 10 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses, no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 14 [X X X] [Omitted by Notification No. C-6-5-83-3-I, dated 23-7-1984.] and except after consultation with the Commission where such consultation is necessary:
Provided further that no power to review shall be exercised by the head of department unless:
(i) the authority which made the order in appeal; or
(ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.
Explanation.............."
8. So far as issue that if the Police Regulations are silent, then the provisions are to be borrowed from the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 is concerned, the same was considered by the Coordinate Bench of this Court in the case of Angad Singh Rathore (supra) wherein the order passed by the authorities beyond the period of six months has been quashed. The relevant portion of the order read as under:
"9. It is not disputed that in view of Regulation 262 of the Regulations 262 of the Regulations against the penalty order dated 15.05.2006 passed by the third Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/31/2024 7:59:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:14472 7 WP-18955-2023 respondent Inspector General of Police, Ujjain the appellate authority would be is the second respondent Director General of Police. Regulation 270 empowers any authority superior to the authority making the order of penalty to review the order suo motu. This being the position and the Director General of Police being the superior authority as well as appellate authority against the order of penalty sought to be reviewed the provisions contained in Rule 29 Sub Clause
(iii) of the Rules would get attracted. Rule 29 (iii) provides that the appellate authority may review the order proposed to be reviewed within six months. In the present case the second respondent appellate authority sought to review the order after more than eight months. In the circumstances the action to take the order of penalty in review having been taken after six months is barred by limitation.
10 The contention of learned Government Advocate that the second respondent being the Head of the department no period of limitation is provided for taking the matter in suo motu revision is misconceived. Police Regulation 270 provides that the review shall be made by any authority superior to the authority making order. In view of Regulation 262 the appellate authority against the order of penalty passed by the Inspector General of Police, Ujjain is Director General of Police being the authority superior to the authority making the order. In the circumstances proposed action of review by the Director General of Police is in the capacity of the appellate authority and therefore the suo motu powers could not have been exercised by him after the prescribed period of limitation of six months in view of Rule 29(iii) of the Rules, 1966.
11. Having regard to the aforesaid, in my considered view, the impugned order dated 23.07.2007 (Annexure A/8) setting aside the order of penalty passed by the third respondent as also the proposed action against the petitioner in pursuance to the show cause notice dated 24.03.2007 (Annexure A/1) are liable to be and are hereby quashed."
In the present case, the action taken by the authorities is beyond the period of six months, therefore, the judgment passed in the case of Angad Singh Rathore (supra) is fully applicable to the case of the petitioner also.
9. Under these circumstances, the impugned orders dated 02.12.2022 Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/31/2024 7:59:21 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:14472 8 WP-18955-2023 (Annexure P/5) and 20.06.2023 (Annexure P/1) being unsustainable and are hereby quashed. The petitioner is directed to be reinstated in service with all consequential benefits, including arrears of salary.
10. The petition stands allowed and disposed off. No order as to costs.
(VISHAL MISHRA) JUDGE sj Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/31/2024 7:59:21 PM