Atul Prakash Ladervs vs State Of M.P. And Ors
2021 Latest Caselaw 309 Chatt

                                    1

                                                                          NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
               Writ Petition (S) No.4032 of 2005
    Atul Prakash Lader, son of Shri S.P.Lader, Inspector
    Police, Posted at Police Training School, Rajnandgaon
    (Chhattisgarh)
                                                           ­­­­ Petitioner
                               Versus
  1. State of Madhya Pradesh, through Secretary, Ministry
     of Home, Mantralaya, Vallabh Bhawan, Bhopal (M.P.)
  2. Inspector General of Police, District Balaghat (M.P.)
  3. The Secretary, Department of Home, Ministry of Home,
     Mantralaya, D.K.S. Bhawan, Raipur (Chhattisgarh)
  4. Superintendent       of   Police,            District       Rajnandgaon
     (Chhattisgarh)
  5. Director General of Police, State                    of   Chhattisgarh,
     Police Head Quarters, Raipur (CG)
                                                          ­­­­ Respondents

For Petitioner : Mr.H.S.Patel, Advocate For Res.No.3 to 5/State: Mr.Sunil Otwani, Addl.A.G. with Mr.Ravi Bhagat, Dy.G.A.

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board

15.6.2021

1. Proceedings of this matter have been taken­up through

video conferencing.

2. The petitioner at relevant point of time was working

as Reserved Inspector. In a regular departmental

proceeding held against him, the Inspector General of

Police inflicted penalty of stoppage of one increment

with cumulative effect by order dated 4.9.2000

(Annexure A­5). Feeling aggrieved against that order,

the petitioner herein preferred appeal before the

appellate authority in accordance with Regulation 262

of the Chhattisgarh Police Regulations. Learned

appellate authority in a brief and cryptic order

dismissed the appeal by order dated 24.7.2004

(Annexure A­8) and on mercy appeal being preferred by

the petitioner, the competent authority also dismissed

mercy appeal by order dated 30.9.2004 (Annexure A­10).

Now, the appellate order and order in mercy appeal

have been called in question by the petitioner in the

instant writ petition.

3. Mr.H.S.Patel, learned counsel for the petitioner,

would submit that though the petitioner's services are

governed by Regulation 262 of the Police Regulations,

but yet aid and assistance of the Chhattisgarh Civil

Services (Classification, Control & Appeal) Rules,

1966 (hereinafter called as 'the Rules of 1966') can

be taken and it would be applicable and therefore,

appeal ought to have been decided in terms of Rule 27

of the Rules of 1966 and as such, unreasoned and

cryptic order passed the appellate authority is liable

to be set aside. Apart from the fact that disciplinary

authority was not competent to take disciplinary

action against the petitioner and inflicted penalty of

stoppage of one increment with cumulative effect, as

such, it is liable to be set aside.

4. On the other hand, Mr.Sunil Otwani, learned Additional

Advocate General with Mr.Ravi Bhagat, learned Deputy

Government Advocate appearing for respondents No.3 to

5/State, would support the impugned order and submit

that the petitioner's appeal has rightly been

dismissed and no interference is called for in this

writ petition preferred by the petitioner.

5. I have heard learned counsel for the parties and

considered their rival submissions made hereinabove

and also went through the records with utmost

circumspection.

6. It is true that the petitioner is governed by the

Chhattisgarh Police Regulations and his appeal is

governed by Regulation 262 of the Police Regulations,

which states as under:­

"262. Appeal. - Every officer against whom an order may be passed under Regulation 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 that that referred to in sub­head (1) of Regulation 214 and is rejected by the appellate authority, he may prefer a second appeal to the State Government."

7. Regulation 262 of the Police Regulations is silent

about the procedure to be followed while considering

the appeal, but how the appeal has to be decided and

whether aid and assistance can be taken from the

provisions contained in the Rules 1966.

8. The Madhya Pradesh in the matter of Mahesh Kumar

Shrikishan Tiwari v. State of Madhya Pradesh and Ors.1

(see P­22.) held that the applicability of the Control

and Appeal Rules is not altogether excluded, where the

Police Regulations are silent the provision of Control

and Appeal Rules would apply in departmental enquiries

against subordinate police staff.

9. There is no express provision with regard to the

manner of hearing the appeal, therefore, following the

principle of law laid down by the Madhya Pradesh High

Court in Mahesh Kumar Shrikishan Tiwari (supra), Rule

27 of the Rules of 1966 can be taken aid of for

consideration of appeal.

10. Rule 27 of the Rules of 1966 provides as under:­

"27. Consideration of appeal.­(1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of rule 9 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly.

(2) In the case of an appeal against an order imposing any of the penalties specified in rule 10 or enhancing any penalty imposed under the said rule, the appellate authority shall consider,­

(a) whether the procedure laid down in these rules has been complied with and if not, whether such non­compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; 1 1985 MPLJ 516

(b) whether the findings of the disciplinary authority are warranted by the evidence on the records; and

(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe, and pass orders­

(i) confirming, enhancing, reducing or setting aside the penalty; or

(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case...."

11. In the instant case, by order dated 4.9.2000 the

petitioner has been inflicted penalty of stoppage of

one annual increment with cumulative effect and it

amounts to major penalty as held by the Supreme Court

in the matter of Kulwant Singh Gill v. State of

Punjab2 and as such, the appellate authority was

required to consider the appeal filed by the

petitioner in accordance with Rule 27 of the Rules

1966 and could have clearly discussed after holding

that the procedure laid down in the Rules of 1966 has

been complied with, firstly, whether non­compliance of

the rules has resulted in the violation of any

provisions of the Constitution of India or in the

failure of justice, secondly, whether the findings of

the disciplinary authority are warranted by the

evidence on the records and thirdly, whether the

penalty imposed is adequate, inadequate or severe and

pass orders confirming, enhancing, reducing or setting 2 1991 Supp (1) SCC 504

aside the penalty. However, the appellate authority on

24.7.2004 only mentioned the charges levelled against

the petitioner and only in one paragraph, dismissed

the appeal holding that appeal is within limitation,

it has been examined and no case is made out for

interference in the appeal. Operative portion of the

order states as under:­

"vihykFkhZ }kjk mijksDr n.Mkns'k lss {kqC/k gksdj vihy izLrqr fd;k x;k gSA izdj.k ls lacaf/kr leLr fjdkMZ fo0tkW0 uLrh "v""c"@[email protected] vkfn fjdkMZ dk ckjhdh ls ijh{[email protected]/;;u fd;k x;k gSA vihykFkhZ }kjk vihy le; ij fd;k tkuk ik;k x;k] izLrqr vihy ds lHkh fcUnqvksa dk xgu v/;;[email protected]{k.k ij ik;k x;k fd mlds }kjk viuh vihy esas dksbZ rF;~ ,sls ugha fn;s ftlls nh xbZ ltk esa deh dh tk,A vihy esa dksbZ u, rF;~ Hkh ugha gksus ls v/;;[email protected]{k.k mijkUr izLrqr vihy "fujLr" dh tkrh gSA

[email protected]& jktho ekFkqj vfr0iqfyl egkfunsZ'kd] ¼iz'kklu½ iqfyl eq[;ky;] jk;iqj ¼N0x0½"

Such a procedure adopted by learned appellate

authority is contrary to clause (a) to (c) of Rule 27

of the Rules 1966.

12. It is well settled position of law that the

appellate authority in disciplinary proceeding acts in

quasi­judicial capacity and order passed has to be

reasoned one and showing application of mind to the

question raised by the appellant and if it is not

done, the appellate order is vitiated. (See Divisional

Forest Officer, Kothagudem and others v. Madhusudhan

Rao3).

13. The Supreme Court reiterated this principle of

law by observing that an appellate authority by

deciding statutory appeal is not only required to give

hearing to the Government servant, but pass a reasoned

order dealing with the contention raised in the

appeal. (See Deokinandan Sharma v. Union of India and

others4).

14. Even if the appellate order is in agreement with

that of the disciplinary authority it may not be

speaking order, but the authority passing the same

must show that there had been proper application of

mind in compliance with the requirement of law while

exercising his jurisdiction particularly when the

rules required application of mind on several factors

and several contentions had been raised and he was

bound to assign reasons so as to enable the Court

reviewing its decision to ascertain as to whether he

had applied his mind to the relevant factors which the

rule required to do. (See Narinder Mohan Arya v.

United India Insurance Co. Ltd. and others5).

15. Reverting to the facts of the present case in the

light of aforesaid proposition of law laid down by the

Supreme Court in above­stated judgments, it is quite 3 (2008) 3 SCC 469 4 (2001) 5 SCC 340 5 (2006) 4 SCC 713

that the appellate authority neither considered

clause (a) to (c) of Rule 27 of the Rules 1966 nor

recorded any reasons or even did not address the

contentions raised by the petitioner in his memo of

appeal and simply finding the appeal is within

limitation and further holding that he has examined

the appeal, finding no merit proceeded to dismiss the

appeal. It is totally impermissible way of disposing

of the appeal particularly in light of Rule 27 of the

Rules of 1966.

16. As a fallout and consequence of the aforesaid

discussion, the order dated 24.7.2004 (Annexure A­8)

passed by appellate authority and the order dated

30.9.2004 (Annexure A­10) passed by the competent

authority both are hereby set aside. Appeal filed by

the petitioner herein is restored to the file of

appellate authority. The appellate authority is

directed to consider the appeal of the petitioner in

accordance with Rule 27 of the Rules of 1966 within 45

days from the date of receipt of a copy of this order

and will decide the same after hearing the petitioner

and other side, strictly in accordance with law. It is

stated at the Bar that appeal is pending since 2004.

The Director General of Police is directed to ensure

that appeal is decided within the time limit indicated

hereinabove. The petitioner is at liberty to file

additional documents, if any, in support of his appeal

and take all possible grounds.

17. The writ petition is partly allowed to the extent

indicated hereinabove. No order as to cost(s).

Sd/­

(Sanjay K.Agrawal) Judge

B/­