Brajesh Kumar Dubey vs The State Of Madhya Pradesh
2023 Latest Caselaw 8332 MP

             1


    IN THE HIGH COURT OF MADHYA PRADESH
                      AT J A B A L P U R
                              BEFORE
           HON'BLE SHRI JUSTICE ANAND PATHAK

                 WRIT PETITION No. 1213 of 2008

BETWEEN:-
BRAJESH KUMAR DUBEY S/O- SHRI R.P. DUBEY, AGED
ABOUT   35  YEARS,  R/O-   VILLAGE     GHANA,
(KHAMARIA), POST OFFICE- SONEPUR, DISTRICT
JABALPUR (MADHYA PRADESH)
                                                    ..... PETITIONER
(BY SHRI MANOJ SHARMA - SENIOR ADVOCATE WITH
SHRI QUAZI FAKHRUDDIN - ADVOCATE)

AND
    THE STATE OF MP THROUGH ITS SECRETARY
1   MINISTRY OF HOME, VALLABH BHAWAN,
    BHOPAL (MADHYA PRADESH)
    DIRECTOR GENERAL OF POLICE (RAILWAY)
2
    (MADHYA PRADESH), BHOPAL
    THE SUPERINTENDENT OF POLICE (RAILWAY) IN
3   FRONT OF COLLECTORATE OFFICE, JABALPUR
    (MADHYA PRADESH)
                                           .....RESPONDENTS/STATE
(BY SHRI ANSHUMAN SWAMI - PANEL LAYWER)




            Reserved on       :     05/01/2023

            Pronounced on     :     12/06/2023

      This petition having been heard and reserved for order coming on
               2


for pronouncement this day, this Court passed the following:

                                  ORDER

With consent heard finally.

The present petition under Article 226/227 of the Constitution of India has been preferred by the petitioner seeking following reliefs:-

"(i) Summon the entire relevant records from the respondents for its kind perusal.

(ii) Set aside the order dated 31.10.2007 Annexure P/1 and the order dated 13.12.2007 Annexure P/2.

(iii) Direct the respondents to reinstate the petitioner with all consequential benefits alongwith including full back wages as if the impugned orders are never passed.

(iv) Any other order/orders, which this Hon'ble Court deems, fit proper.

(v) Cost of the petition may also kindly be awarded."

2. The petitioner is aggrieved by the order dated 31.10.2007 (Annexure P/1) passed by the Superintendent of Police (Railway), whereby petitioner who was working as Constable has been inflicted with punishment of removal from the service on the basis of allegations as levelled in the departmental inquiry (hereinafter referred as D.E.) and partly proved.

3. The petitioner is further aggrieved by the order dated 13.12.2007

(Annexure P/2) passed by the Inspector General (Railway), Bhopal, whereby an appeal preferred by the petitioner has been rejected.

4. Precisely stated facts of the case are that the petitioner was initially appointed as Constable on 02.03.1996 in Madhya Pradesh Police. In August, 2005, he was transferred from department of State Police to Government Railway Police (GRP).

5. The respondent No.3 issued joint charge-sheet on 14.08.2007 against the petitioner as well as to one Shri Sewak Ram (Constable) with the allegation that on 05.08.2007 the petitioner illegally detained one Shri Ramayan Prasad Mishra and beaten him. It was further alleged that the petitioner snatched Rs.1,000/- from the said person and this is the violation of the Regulation 64(2) of the Police Regulation and made himself ineligible for the police services. In fact, victim Ramayan Prasad Mishra was not the complainant in the case and complaint was submitted by one S.B. Singh but represented himself as Journalist in Nav Bharat Newspaper.

6. Charge-sheet was issued and the petitioner submitted his reply on 24.08.2007 whereby he denied the allegation and charge-sheet in toto. Since Disciplinary Authority was not satisfied with the reply of the petitioner, therefore, Mr. Umesh Tiwari, Police Inspector (Railway) was appointed as Inquiry Officer to conduct a joint inquiry against the petitioner and other delinquent Constable Sewak Ram.

7. Petitioner participated in the DE and it is the allegation of the petitioner that he was compelled to participate in the DE without

assistance of the defence assistant and therefore, as per Rule 14(8) of the Madhya Pradesh Civil Services (Classification Control Act) Rules, 1966, he was denied the said assistance. No presenting officer was appointed by the Disciplinary Authority and violated the Rule 14(5)(c) of the Rules, 1966. Although charge-sheet contained the names of 5 witnesses but 9 witnesses in total were examined and as per Rule 14(15) of the Rules, 1966 new witnesses could not have been permitted or called to fill up any gap in the evidence. After examination of witnesses, inquiry officer submitted his report to the Disciplinary Authority and copy of the report was supplied by the Disciplinary Authority to the petitioner. The petitioner was found not guilty for beating and snatching Rs.1,000/- from the victim Ramayan Prasad Mishra. However, inquiry officer found that the petitioner is involved in maligning the image of the police department as he was found guilty of violation of Regulation 64(2) of the MP Police Regulations.

8. After receiving the report of the inquiry officer, petitioner submitted his representation dated 30.10.2007 before the Disciplinary Authority but the authority passed the impugned order immediately thereafter on 31.10.2007, whereby the Disciplinary Authority was disagreed with the findings of the inquiry officer and held that all the allegations levelled against the petitioner are found proved and imposed punishment of removal from the services.

9. Thereafter, appeal was preferred by the petitioner but met the same result, therefore, petitioner is before this Court.

10. It is the submission of learned Senior Counsel for the petitioner that

no show cause notice was given by the Disciplinary Authority to the petitioner when showed disagreement with the findings of inquiry officer and therefore, caused illegality. As per Rule 15(2) of the Rules 1966, Disciplinary Authority was required to record his disagreement on the basis of material available on record. However, in the present case, Disciplinary Authority has not recorded the reason for disagreement and proceeded on the basis of conjectures and surmises.

11. In support of above submission, learned Senior Counsel referred the judgments of Apex Court in the case of Punjab National Bank and others Vs. Kunj Behari Misra reported in (1998) 7 SCC 84, Yoginath D. Bagde Vs. State of Maharashtra and another reported in (1999) 7 SCC 739, Ram Kishan Vs. Union of India and others reported in (1995) 6 SCC 157.

12. It is submitted by the learned Senior Counsel for the petitioner that departmental inquiry is vitiated due to non-compliance of the mandatory procedure as contained in Rule 14(8), 14(5)(c), 14(18) of the Rules, 1966 and relied upon the judgment rendered by the Apex Court in the case of Ministry of Finance and another Vs. S.B. Ramesh reported in (1998) (3) SCC 227.

13. It is further submitted that the Police Regulation 64(2) does not prescribe any misconduct but prescribes a general prescription of set of norms/behavioural conduct without specifying its fall out in case of non- compliance. Therefore, it cannot be treated as misconduct and while replying upon the judgment rendered by Hon'ble Apex Court in the case of A.L. Kalra Vs. Project and Equipment Corporation of India Ltd.

reported in (1984) 3 SCC 316 tried to hammer the legal position that in absence of any misconduct in specific terms, it would expose a grey area not amenable to objective evaluation.

14. It is also submitted that victim Ramayan Prasad Mishra does not support the story of department and categorically submitted that money which was taken was returned back immediately by the petitioner. Except the said witness, all other witnesses were not eye-witnesses, they were all hearsay witnesses, therefore, their testimony could not have been relied. While relying the judgment rendered by Hon'ble Apex Court in the case of Zunjarrao Bhikaji Nagarkar Vs. Union of India and others reported in (1999) 7 SCC 409, Yoginath D. Bagde Vs. State of Maharashtra and another reported in (1999) 7 SCC 739, petitioner submits that statement of victim in the D.E. has been ignored and therefore, findings of the Disciplinary Authority are perverse in nature.

15. Per contra, learned Panel Lawyer for the State opposed the prayer and while filing the reply submits that service record of the petitioner was tainted because although he was awarded 20 prizes but suffered 24 minor and 5 major punishment in his service tenure. In D.E., statements of 7 witnesses were recorded in different dates and the petitioner produced two different witnesses and after taking response over the inquiry report, case has been considered and impugned order has been passed.

16. During the pendency of the petition, it appears that one document by way of document No.2138/2019 as preliminary objection on behalf of the respondents was filed in which it was referred that three criminal cases are pending against the petitioner i.e. Istigasa No.151/2012 for

offence under Section 107, 116(c) of the Cr.P.C., Istigasa No.59/2013 for offence under Section 151, 107, 116 (c) of the Cr.P.C. and Istigasa No.61/2014 for offence under Section 107, 116 (c) of Cr.P.C.. It is further submitted that the petitioner was detained in jail custody during the period from 30.07.2015 to 15.04.2016 for offence under Section 379 of the IPC vide Crime No.343/2015 and therefore, he is otherwise also not entitled for government service as per relevant service rules. Therefore, he prayed for dismissal of this petition.

17. Heard the learned counsel for the parties and perused the documents appended thereto.

18. This is a case where petitioner who was a police constable at relevant point of time facing punishment of removal from service after departmental inquiry.

19. Learned Senior Counsel for the petitioner raised several grounds in support of his submissions and tried to bring home the fact that adequate opportunity of hearing was not given to the petitioner during departmental inquiry and even after report is submitted by inquiry officer before the Disciplinary Authority.

20. Learned Senior Counsel for the petitioner cited certain judgments also in this regard. Other aspects were also tried to be advanced. But, on perusal of the appellate order and coming to know about subsequent conduct of the petitioner it appears that situation has been become bit complicated in the matter. Reason is obvious. If this court gives any specific finding over the arguments advanced by the learned counsel for

the petitioner and if petitioner is ultimately found to be (or not to be) entitled to get any relief including the relief of reinstatement then his reinstatement would be haunted by criminal acts performed by him albeit subsequent to his removal from his service but nevertheless those offences stare him.

21. Beside that, perusal of appellate order passed by the I.G. (Railway), it appears that it does not discuss the points raised by the petitioner in appeal. All the submissions and documents were not considered by the appellate court including the point that constable Sewak Ram (No.181) received punishment of stoppage of increment with cumulative effect for a year whereas petitioner was inflicted with penalty of removal from the service and incidentally charge-sheet contains same set of allegations against both the employees. Such anomaly is required to be considered by the appellate authority alongwith latest development as projected by the respondents in which criminal record and confinement of petitioner for offence under Sectoin 379 of the IPC have been discussed. Therefore, impugned order dated 13.12.2007 passed by Appellate Authority is hereby set aside.

22. Inspector General (Railway) Bhopal/Appellate Authority is directed to consider the appeal of petitioner afresh while meeting out all the points raised by the petitioner in detail and including the point of his criminal antecedents accumulated during the period of removal. This way real picture would emerge. Petitioner shall be at liberty to place additional documents in support of his submission before the appellate authority and if any acquittal is being recorded in the case(s) pending

against him and out come of those case(s) shall also be placed before Appellate Authority so that Appellate Authority may holistically consider the case and thereafter, ensure passing an appropriate order.

23. Appeal shall be decided by the Appellate Authority at an expeditious note and Appellate Authority may take guidance from the judgment of Apex Court in the case Avtar Singh Vs. Union of India and others reported in (2016) 8 SCC 471 while deciding the appeal because this judgment may have some trappings over the factual scenario of the case looking to the later development as pointed out by the respondents through preliminary objections.

24. Accordingly, petition stands disposed of in above terms.

(ANAND PATHAK) JUDGE Rashid

RASHID Digitally signed by RASHID KHAN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=23377d7d214c811801fc322b576ca4ed1954237f632 4416af3985b5e9940ed42,

KHAN pseudonym=D0D045404B6F6AB1225B3600B86B72153386B ADD, serialNumber=111CC474A72B078DC9A89F3CB13BB668FD8 E0E91BEDA3CB721BBD836D768B09C, cn=RASHID KHAN Date: 2023.06.13 18:57:08 +05'30'