Madhya Pradesh High Court
Anand Kumar Giri vs The State Of Madhya Pradesh on 4 May, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 4 th OF MAY, 2023
WRIT PETITION No. 10969 of 2019
BETWEEN:-
ANAND KUMAR GIRI S/O BARMESHWAR GIRI, AGED
ABOUT 26 YEARS, OCCUPATION: CONSTABLE R/O
GRAM GANGAHRAKE MADIYA P.S. GEFNA (UTTAR
PRADESH)
.....PETITIONER
(BY SHRI SANJAY KUMAR AGRAWAL - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR.
PRINCIPAL SECRETARY VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. DIRECTOR GENERAL OF POLICE POLICE
HEADQUARTERS BHOPAL (MADHYA PRADESH)
3. DEPUTY INSEPCTOR GENERAL OF POLICE
POLICE HEADQUARTERS RANGE DISTT.
CHHINDWARA (MADHYA PRADESH)
4. SUPERINTENDANT OF POLICE POLICE
HEADQUARTERS DISTT. CHHINDWARA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SOURABH SONI - PANEL LAWYER)
This petition coming on for admission this day, th e court passed the
following:
ORDER
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SAN This petition is filed by the petitioner, being aggrieved of order dated
Digitally signed by ASHWANI PRAJAPATI
Date: 2023.05.08 19:09:05 IST
30.06.2015 (Annx.P/4), passed by the Superintendent of Police, Chhindwara
(M.P.), discharging the petitioner Anand Kumar Giri, with effect from
01.07.2015, pointing out that his services are not required.
2. Petitioner is also aggrieved of the order dated 16.01.2019 passed by the
Deputy Inspector General of Police, Chhindwara, rejecting petitioner's appeal
and is also aggrieved of the order dated 24.04.2019 (Annx.P/9), rejected the
petitioner's mercy appeal.
3. Shri Sanjay Kumar Agrawal, submits that petitioner was appointed as a
Constable vide order dated 21.10.2013 on probation of two years. It is
submitted that while he was discharging his duties faithfully. He was given a
notice by the Superintendent of Police Chhindwara on 11.05.2015, mentioning
therein that a criminal case was registered against him bearing Case Crime
No.184/2015, under Section 380 of Indian Penal Code, while he was
undergoing training at Police Training School, Indore, for which case was
registered at Police Station Azad Nagar, district Indore and petitioner was
arrested on 17.04.2015.
4. It is submitted that once show cause notice was issued, then without
conducting enquiry into the charges and overlooking the fact that petitioner was
subsequently acquitted by the Court of Judicial Magistrate First Class, Indore,
where Criminal Case No.14045/2015, was tried, vide judgment dated
26.02.2018, at least the appellate Authority and the Director General of Police
should have taken these facts into consideration and should have shown
humanitarian consideration while dealing with the case of the petitioner.
Reliance is placed on the judgment of Supreme Court in Union of India and
others Vs. Mahaveer C. Singhvi [(2008) 8 SCC 220]. Reliance is also
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placed on the judgment of M.P. High Court in Brajesh Tiwari Vs. State of
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Madhya Pradesh and others (Writ Petition No.4834/2015, 2015 SCC
Online M.P. 3709.
5. In case of Mahaveer C. Singhvi (supra), Supreme Court noted a fact that
there is a difference between discharge simplicitor during probation or
discharge being punitive. It is held that if order is punitive and the enquiry is
conducted behind probationer's back, then in that case findings against
probationer arrived behind his back on the bsis of enquiry conducted into
allegations made against him/her would be bad and liable to be set aside.
6. Similarly, in case of Brajesh Tiwari (supra) in para 16, Coordinate Bench
of this Court has dealt with the principles which are as under :-
"16. On the basis of these judgments, the following principles can be
culled out :-
(i) If a probationer is terminated under the rules of his employment and
such termination without anything more would not attract the operation of
Article 311 of the Constitution.
(ii) The circumstances preceding or attendant on the order of termination
have to be examined in each case.
(iii) If the order visits the public servant with any evil consequences or
casts an aspersion against his character or integrity, it must be considered to be
one by way of punishment.
(iv) An order of termination of service in unexceptionable form preceded
by an enquiry launched by the superior authorities only to ascertain whether the
public servant should be retained in service, does not attract the operation of
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Article 311 of the Constitution.
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(v) If there be a full-scale departmental enquiry, charge-sheet is issued,
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enquiry officer is appointed and then termination order is passed, it will attract
the operation of Article 311 of the Constitution.
(vi) Form of termination orderis not conclusive/decisive of its true nature
and it might merely be a cloak or camouflage for an order founded on
misconduct.
(vii) It is open to the Court before which termination order is challenged
to go behind the form and ascertain the true character of the order. The Court
can apply the doctrine of lifting the veil.
(viii) If findings were arrived at in an enquiry as to misconduct, behind
the back of officer or without a regular enquiry, the simple order of termination
is to be treated as "founded".
(ix) The factor which impelled the employer to take the action of
termination is also important to determine the real nature of the action."
7. Shri Sourabh Soni, learned Panel Lawyer, supports the order and submits
that no indulgence is required in the matter. Reliance is placed on the judgment
of Hon'ble Supreme Court in Anil Bhardwaj Vs. Hon'ble High Court of
Madhya Pradesh and others (2020 SCC OnLine SC 832) and Anup
Jaiswal Vs. Govt. of India (AIR 1984 SC 636).
8. Placing reliance on these judgments, it is submitted that in case of Anil
Bharadwaj (supra), Supreme Court held that in that case since acquittal took
place after the recruitment process stood completed, therefore, Court can
intervene if the decision is inspired by malafide or arbitrary or suffered from
some other vice.
9. As far as law laid down in Mahaveer C. Singhvi (supra) is concerned,
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impugned order being not punitive, there was no need to conduct any enquiry.
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Date: 2023.05.08 19:09:05 IST
In that case also, it is held that no order can be passed without giving an
opportunity of hearing to the respondents. Thus, when show cause notice was
issued, opportunity was afforded to the petitioner, then provisions of Article
311 of the Constitution, will not be applicable.
10. The Supreme Court in Anup Jaiswal Vs. Govt. of India (1984 SC
636), held that order of discharge, if, merely a camouflage for an order of
dismissal for misconduct, then if opportunity to defend is not given, then order
is liable to be struck down. It is evident from record that show caucse notice
was issued, opportunity of hearing was afforded to the petitioner and,
thereafter, impugned order was passed. Thus, it cannot be said that the order is
punitive. It is further borne from record that it is not the gravity of the offence
or question of conviction or discharge, but the fact that a person working in a
uniform service should inspire highest level of confidence of the public and with
an alleged taint of his character, he cannot be and should not be allowed to
continue in service.
11. Thus, as far as judgment of Supreme Court in Mahaveer C. Singhvi
(supra) is concerned, it has no application, inasmuch as, since there is no
allegation of any malafide or arbitrariness or suffering from some other similar
vice, administrative decision cannot be interfered with.
12. Ratio of judgment in Anil Bharadwaj (supra) is that in absence of
enquiry conducted behind the back of the petitioner, order is not liable to be set
aside. Similarly, ratio of judgment in Brijesh Tiwari (supra) is also not made
out and ratio of judgment in case of Brajesh Tiwari (supra) is also to the same
effect. In fact in para 16(iii), it is held that if findings were arrived at in an
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enquiry as to misconduct, behind the back of officer or without a regular
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enquiry, the simple order of termination is to be treated as " ill founded".
Date: 2023.05.08 19:09:05 IST
13. In the present case, no enquiry was conducted behind petitioner's back
and looking to the allegations, if he has been discharged after issuing show
cause notice and affording him an opportunity of hearing, then taking into
consideration the responsibility attached with the uniform police force, the
impugned orders cannot be faulted with, especially when opportunity of hearing
was afforded and the order impugned is not punitive.
14. Accordingly, petition fails and is dismissed.
(VIVEK AGARWAL)
JUDGE
A.Praj.
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SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2023.05.08 19:09:05 IST
