Madhya Pradesh High Court
Ram Kishor Shivhare vs State Of M.P. And 3 Ors. on 30 November, 2023
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 30 th OF NOVEMBER, 2023
WRIT PETITION No. 8741 of 2012
BETWEEN:-
RAM KISHOR SHIVHARE S/O RAMJEEVAN SHIVHARE,
AGED ABOUT 35 YEARS, OCCUPATION: EX POLICE SUB-
INSPECTOR BEHIND M.P.E.B. COLONY,CIVIL LINE
ROAD CHHATARPUR/5 M.T.H. COMPOUND CENTRAL
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI MADHUSUDAN DWIVEDI - ADVOCATE)
AND
1. STATE OF M.P. AND 3 ORS. GOVT. HOME DEPT.
(POLICE)VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
2. DIRECTOR GENERAL OF POLICE POLICE HEAD
QUARTERS (MADHYA PRADESH)
3. INSPECTOR GENERAL OF POLICE INDORE ZONE
(MADHYA PRADESH)
4. SR. SUPERINTENDENT OF POLICE S.P. OFFICE,
INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI TARUN PAGARE - G.A.)
This petition coming on for admission this day, the court passed the
following:
ORDER
This is second round of the petitioner before this Court. The petitioner
earlier filed WP No.3312/2012 seeking quashment of the order dated 11.9.2011
whereby he has been dismissed from service and also challenged the appellate
order dated 12.12.2011 whereby the appeal filed by the petitioner has been
dismissed.
2. The brief facts of the case are that petitioner was initially appointed on
the post of Sub Inspector by Inspector General of Police (Administration) vide
order dated 21.2.2007. On 6.9.2011 while he was posted at P.S. Chandan
Nagar, Indore as Sub Inspector, a criminal case was registered against the
petitioner for commission of offence u/Ss.363, 365, 342, 506/34 of IPC. On
that very day the petitioner was suspended. Upon receipt of the preliminary
report he was dismissed by Senior Superintendent of Police by order dated
11.9.2011. Against the said order, petitioner preferred an appeal before the
Inspector General of Police which was also dismissed by order dated
12.12.2011. The order of dismissal of the petitioner was passed under Rule
19(2) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1996
read with proviso (b) of Article 311(2) of the Constitution of India stating that it
is impracticable to hold enquiry in the matter considering the gravity of
misconduct of the petitioner being a police officer. In earliere petition WP
No.3312/2012 this Court after taking into consideration the judgment passed by
the Apex Court in the case of Tarsem Singh Vs. State of Punjab & Ors
(2006) 13 SCC 581 and also the judgment passed by the Apex Court in the
case of Ex Constable Chhotelal Vs. Union of India & Ors. (2000) 10 SCC
196 held that the order of dismissal of appeal was passed by the authorities
without recording the reasons as to why the departmental enquiry is
impracticable under the facts and circumstances of the case. The petition was
allowed. The impugned orders of dismissal of appellate authority were
quashed. The matter was remitted to the appellate authority with a direction that
it shall decide the appeal on merits after giving an opportunity of hearing to the
petitioner and pass a reasoned and speaking order within a period of six weeks
from the date of receipt of copy of the said order. After the said order the
appellate authority has passed the impugned order dated 13.8.2012 whereby
after affording opportunity of hearing to the petitioner and taking into
consideration the serious allegations against the applicant in criminal cases it
was held that the holding of departmental enquiry is impracticable in the facts of
the present case and the order of dismissal of service was affirmed.
3. In the present petition, the petitioner challenged the order dated
13.8.2012 Annexure P.15 passed by Inspector General of Police, Indore
imposing the punishment of dismissal from service without conducting any
departmental enquiry as per Rule 14 and 15 of MPCCA Rules, 1966 by
adopting the procedure specified in Rule 19(2) and sub proviso (b) appended
to Clause 2 of Article 311 of the Constitution of India. It is argued that the
impugned order is passed by the appellate authority after remand by the court is
nothing but repetition of reasons recorded in the earlier order. The authority
has failed to record the specific reasons why it is not reasonably practicable to
hold an enquiry in the matter provided in the Rules but dismissed the appeal
mentioning the fact of registration of two criminal cases against the petitioner.
4. Counsel for petitioner has filed IA No.3218/2020. Along with the
said application, the order passed by this court in Criminal Appeal has been
filed whereby the petitioner has been acquitted in both the criminal cases. The
first case was relating to Crime No.856/2011 for commission of offence
u/Ss.363, 364, 342, 506-B and 354 of IPC and Sec.31(10) of Scheduled Caste
and Scheduled Tribes (Prevention of Atrocities) Act, 1984. The High Court,
after examining the prosecution witnesses held that the prosecution could not
prove the case beyond any reasonable doubt against the petitioner and the
petitioner has been acquitted from all the charges by order dated 12.9.2014 in
Criminal Appeal No.1490/2023. In the same manner in Crime No.846/2011 in
the other criminal case which was also registered on the same set of allegations
for commission of offence u/Ss.363, 365, 342, 506/34 of IPC, the appeal filed
by the petitioner in Cr.A. No.656/2014 has been allowed and the order of
conviction and sentence has been set aside and the petitioner has been
honourably acquitted from all the charges by judgment dated 29.5.2020.
5. After the acquittal in both the criminal charges, the petitioner has
preferred a detailed representation on 8.6.2020 in the shape of appeal for
reinstatement before the Director General of Policebut till this date no decision
has been taken.
6. Counsel for petitioner argued that the order of dismissal from service
and appeal are contrary to the provisions of Article 311 Clause (b) whereby the
authorities are under obligation to record the reasons that why it is not
practicable to hold enqiry. He submitted that once the respondents have held
preliminary enquiry then there was no reason for not conducting departmental
enquiry. In support of his submissions he has placed reliance on the judgment
passed by co-ordinate bench in the case of Amit Chaurasia Vs. State of MP
and another.
7. Counsel for State supported the order impugned and stated that the
authorities has recorded the reasons that the departmental enquiry is not
practicable to be held in the facts of the present case.
8. After having heard learned counsel for parties, it is evident that the
impugned order was passed by the appellate authority after remand on
13.8.2012 whereas the petitioner has been acquitted by this court in the
criminal cases on 12.9.2014 and 29.5.2020 in Criminal Appeals subsequent to
the order passed by the appellate authority. The petitioner has already
submitted a representation/appeal before the Director General of Police on
8.6.2020 but no decision has been taken till this date. Under the Scheme of
Police Regulations, after the order passed by the appellate authority, there is a
provision for suo motu revision and wider powers have been conferred to the
revisional authority. The provisions of Regulation 270 reads as under:-
"270. (1) Every order of punishment or exoneration,
whether original or appellate shall be liable to revision suo-
motu by any authority superior to the authority making the
order.
(2) Every appellate order by a final appellate authority shall
be liable to revision by such final appellate authority on
application make in that behalf by the person against whom
the order has been passed.
Explanation:- For the purpose of this clause the expression
"final appellate authority" means the final authority
empowered to hear an appeal under Police Regulation 262.
(3) The provisions of Regulation 266, 267, 268, and 271
shall be as nearly as may be apply to an application for
revision.
(4) The revising authority may for reason to be recorded in
writing exonerate or may remit vary of enhance the
punishment imposed or may order a fresh enquiry of the
taking of further evidence in the case;
Provided that it shall not vary or reverse any order unless
notice has been served on the parties interested and
opportunity given to them for being heard."
9. Admittedly, the impugned order of appeal was passed by Inspector
General of Police and the petitioner has invoked the jurisdiction by filing an
appeal/representation before the higher authority i.e. Director General of Police.
The power of revision has been conferred to the higher authority. From the sub
Regulation 4 of 270, it is manifest that the wide powers have been conferred to
the revisional authority to exonerate, remit, vary of enhance the punishment or
may order a fresh enquiry of the taking of further evidence in the case.
10. Considering the aforesaid provisions and the fact that the order of
acquittal in criminal cases by High Court have not been brought to the notice of
the respondent authorities, I deem it proper to dispose off the present petition
with a direction to the respondent No.2 Director General of Police, Bhopal to
treat the application/representation of the petitioner dated 8.6.2020 (Annexure
P/18) as revision under Regulation 270 of the M.P. Police Regulations and the
said authority shall pass a fresh order considering all the contentions raised
before it and shall also take into consideration the orders of acquittal passed by
this court in the criminal case. The liberty is granted to the petitioner to file
additional representation within 15 days from today. The said exercise shall be
completed within a period of three months from the date of filing of the
additional representation along with the copy of the order by passing a reasoned
and speaking order and affording opportunity of hearing to the petitioner. The
said authority shall pass a fresh order without being influenced by the previous
order dated 26.3.2012 Annexure P/7 passed in mercy petition as the said order
is quashed being non speaking order.
11. The petition is partly allowed and disposed off.
(VIJAY KUMAR SHUKLA)
JUDGE
VM
