Vikas Chandrakar vs State Of Chhattisgarh And Ors
2021 Latest Caselaw 2121 Chatt

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                                                                              NAFR
                  HIGH COURT OF CHHATTISGARH, BILASPUR
                   Writ Petition (S) No.6994 of 2011
    Vikas Chandrakar, Aged about 23 years, S/o Bhushan Lal
    Chandrakar, R/o­Gazi Nagar, near Durga Temple, Virgaon,
    Raipur (CG)
                                                                ­­­­ Petitioner
                                      Versus
  1. State of Chhattisgarh, through the                      Secretary,       Home
     Department, DKS Bhawan, Raipur (CG)
  2. Director General of Police, Police Head Quarters, Raipur
  3. Inspector General of Police, Durg Division, Durg (CG)
  4. Superintendent of Police, Mahamsamund (CG)
                                                             ­­­­ Respondents

For Petitioner : Mr.K.R.Nair, Advocate For Respondents/State : Mr.Soumya Rai, P.L.

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board (Through Video Conferencing)

3.9.2021

1. The petitioner herein calls in question legality,

validity and correctness of the order dated 30.12.2010

(Annexure P­1) by which the appellate authority has

affirmed the order of removal of the petitioner passed

by the disciplinary authority on 16.7.2010 (Annexure

P­8) finding no merit.

2. Mr.K.R.Nair, learned counsel for the petitioner, would

submit that Rule 27 (2) of the Chhattisgarh Civil

Services (Classification, Control & Appeal) Rules, 1966

(hereinafter called as 'the Rules of 1966') has not

been followed while considering the appeal and

contention of the petitioner has been rejected only in

two paragraphs finding no merit, whereas it ought to

have been considered in accordance with clause (a) to

(c) of Rule 27(2) of the Rules of 1966.

3. On the other hand, Mr.Soumya Rai, learned Panel Lawyer

for the respondents/State, would support the impugned

order.

4. I have heard learned counsel for the parties and

considered their rival submissions made hereinabove and

also went through the records with utmost

circumspection.

5. 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."

6. 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.

7. The Madhya Pradesh High Court 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.

8. 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.

9. 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;

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

(c) whether the penalty or the enhanced

1 1985 MPLJ 516

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...."

10. 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 Rao2).

11. 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 others3).

12. 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

2 (2008) 3 SCC 469 3 (2001) 5 SCC 340

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 others4).

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

light of the aforesaid provision and the judgments

(supra), it is quite vivid that though major penalty of

removal has been inflicted by the disciplinary

authority, but the appellate authority has not

considered the appeal in accordance with Rule 27(2) of

the Rules of 1966 and only in two paragraphs contention

of the petitioner has been recorded and in rest of three

paragraphs, it has been rejected, but no finding has

been recorded that relevant rules have been followed in

making an enquiry, the findings are supported by

evidence available on record and punishment is not

excessive or harsh and as such, the appellate authority

has failed to perform its duty in accordance with law.

14. As a fallout and consequence of the aforesaid

discussion, the impugned order dated 30.12.2010

(Annexure P­1) passed by appellate authority is hereby

set­aside. Appeal filed by the petitioner herein is

4 (2006) 4 SCC 713

restored to the file of appellate authority. The

appellate authority is directed to consider the appeal

of the petitioner in accordance with Rule 27 (2) of the

Rules of 1966 within three months from the date of

receipt of a copy of this order and will decide the same

after hearing the petitioner and pass a reasoned and

speaking order, strictly in accordance with law. The

petitioner is at liberty to file additional submission

before the appellate authority.

15. The writ petition is allowed to the extent

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

Sd/­

(Sanjay K.Agrawal) Judge

B/­