Madhya Pradesh High Court
Govind Bamniya vs Deputy General Of Police State Of M.P. ... on 5 March, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 5 th OF MARCH, 2024
WRIT PETITION No. 11815 of 2013
BETWEEN:-
GOVIND BAMNIYA S/O SHERU BAMNIYA, AGED ABOUT
42 YEARS, OCCUPATION: EXPELLED GRAM BORUD
POST TEH. MANAWAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SIDDHARTH JAIN, ADVOCATE)
AND
1. DEPUTY GENERAL OF POLICE STATE OF M.P. AND
2 ORS. GOVT. NEEMAD RANGE KHARGONE
(MADHYA PRADESH)
2. SUPTD. OF POLICE KHARGONE POLICE OF M.P.
DIST. KHARGONE (MADHYA PRADESH)
3. SUB DIVISIONAL OFFICER POLICE KHARGONE
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI TARUN KUSHWAH, GOVERNMENT ADVOCATE)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
The petitioner has filed the present petition under Article 226 of the
Constitution of India being aggrieved by the order dated 31.07.2013 passed by
the Superintendent of Police, Dhar, whereby penalty of dismissal from service
was imposed. This petition is also against the order dated 12.09.2013, whereby
the Deputy Inspector General of Police, Nimad dismissed the appeal.
02. Draped in brevity, the relevant facts are that the petitioner belongs to
Scheduled Caste and appointed on the post of Constable in Madhya Pradesh
Police, District - Khargone on 26.11.2003. Initially service Roll No.204 was
allotted to the petitioner, but later on changed to service Roll No.657 (Driver).
03. The petitioner as a driver was made incharge of two vehicles having
registration Nos.MP 03 4370 of Police Station - Kasravad and MP 03 5207 of
Jail Kasravat for driving. The petitioner was served with the charge-sheet
alleging following charges:-
"Firstly, it has been alleged that the petitioner while posted at PS
Kasravad was allotted vehicles having registration No.MP-03-4370 and
MP-03-5207 in which he got the 617 liter of diesel filled which amount
to be Rs.28,351.15/- by using the receipts having no.5717, 5719, 5720,
5721, 5723, 5724, 5725, 5727 to 5730 and 4361, 4370, 4380 and 4393
by his own signature without getting receipt signed from the Station
House Officer and thereby caused loss to the government by his corrupt
acts, which turns to be vilation of Rule 3(1) of M.P. Civil Services
Acharan Rules, 1965 and Para 64(2) of Police Regulations.
Secondly, it has been alleged that, petitioner has torn and vanished the 6
receipts having No.5719, 5720, 5721, 5723, 5724 and 5725, which
amounts to be a suspicious act of the petitioner.
Thirdly, it has been alleged that , a receipt book of series 5701 to 5800
was available for the consumption of Diesel in vehicles then also the
receipt of other receipt book having no.4361, 4370, 4380 and 4393 were
used by him with his own signature to cause financial loss to government
and did corruption which is violation of Rule 3(1) of the M.P. Civil
Services Aacharan Rules 1965 and Para 64(2) of Police Regulations.
Fourthly, it has been alleged that, when the Running diaries for the
vehicles having registration No.MP-03-4370 and MP-03-5207 were
called by station office from petitioner the same were not produced and
the explanation of the same was also asked for, but, it was also not
complied by the petitioner which amounts to be violation of Para 64(2)
of Police Regulations."
04. The petitioner submitted reply stating that due to unavoidable
circumstances, the receipts were signed by him but in no manner the diesel was
used for any personal benefits and the vehicle was used in Government duties
and other official works, therefore, it was merely an irregularity, not a
misconduct. The petitioner has also admitted that due to some personal reason,
he could not maintain the running diary, therefore, charges are not maintainable
against him. Reply of the petitioner was not found satisfactory and the
disciplinary authority decided to conduct an inquiry by appointing an Inquiry
Officer and Presenting Officer.
05. Before the inquiry, the Presenting Officer examined ASI Narendra
Tiwari as PW-1, SI Mohan Singh as PW-2, SI Suraj Nagwanshi as PW-3,
Inspector Sunil Gupta as PW-4, Mahesh Chouhan as PW-5, Balram Solanki as
PW-6, Ritesh Chouhan as PW-7 and Jitendra Singh as PW-8. The petitioner
did not examine any witness nor examine any prosecution witness. The Inquiry
Officer submitted a report to the disciplinary authority with the conclusion that
all the four charges are found proved. The copy of inquiry report was
submitted to the petitioner and explanation / objection was called from him. He
submitted a reply by stating that he was Incharge of two vehicles, therefore, he
could not get time to update the running diary and got filled the diesel slips with
his own signatures and in future he would not repeat this mistake. As the reply
of the petitioner was not found satisfactory, the punishment of dismissal from
service was imposed by the Superintendent of Police with a recovery of
Rs.28351.12 as a cost of 617 litre of diesel.
06. Being aggrieved by the aforesaid order, the petitioner preferred an
appeal before the Deputy Inspector General of Police, which came to be
dismissed vide order dated 12.09.2013, hence, the present writ petition is before
this Court.
07. After notice, the respondents filed a reply by submitting that after
conducting regular inquiry, the punishment of dismissal has rightly been
imposed. The petitioner has admitted his misconduct but pleaded that it is a
negligence, for which punishment of dismissal is excessive and
disproportionate. The petitioner was required to make entries in the logbook of
each vehicle. The Department has decided the average of all types of vehicle.
The Station House Officer is the competent authority to sign the slips for filling
the diesel in the police vehicle. It is further submitted that during entire service,
the petitioner earned 8 awards, 14 minor punishments and one major
punishment. Earlier also, he was terminated from the service, but by way of
mercy petition he was taken back into the service vide order dated 28.04.2011,
therefore, he was given sufficient opportunity to improve himself, but he
repeated the misconduct, hence, now it cannot be said that the punishment is
excessive or disproportionate to the misconduct committed by him.
08. I have heard learned counsel for the parties at length and perused the
record.
09. Learned counsel for the petitioner has argued only on the point minor
negligence in duty does not under the category of grave misconduct, it was only
a negligence on his part for which punishment other than dismissal from service
ought to have been imposed. He was incharge of two vehicles, therefore, he
could not get the time to obtain the signature of SHO in payment slips. There is
no allegation against him that he personally used the vehicle after getting filled
617 litre of diesel. Hence, the punishment be modified In support of his
contention, learned counsel has placed reliance upon an order passed by co-
ordinate Bench of this Court in the case of K.C. Kandwal v/s The State of
Madhya Pradesh & Others (Writ Petition No.1300 of 2013).
10. The Presenting Officer examined as many as eight witnesses to
establish the charges but none of them were cross-examined by the petitioner.
The petitioner did not examine any witness in his defence, therefore, all the
evidence remained unrebutted. Even otherwise the petitioner had admitted his
guilt but taking a plea that it is only a negligence or dereliction in duty and not
the misconduct. Therefore, the findings recorded by the Presenting Officer is
not liable to be reappreciated by this Court.
11. Even otherwise, the scope of judicial review in respect of
departmental enquiry matter is very limited. This Court can only examine as to
whether proper procedure was followed and the delinquent was given
opportunity to defend himself. There is no allegation in the petition that the
petitioner was not given sufficient opportunity of hearing by the Inquiry Office
to present his case, therefore, the impugned order is not liable to interfered with
on technical grounds also.
12. So far as the plea of the petitioner that the punishment is excessive
and disproportionate to the proven misconduct is concerned, he got filled the
diesel in two vehicles by signing the slips and he did not maintain the running
diary and despite demand by the SHO, diary was not produced. The counter
slip of the receipts No.5719, 5720, 5721, 5723, 5724 & 5725 were misplaced by
the petitioner and did submit to the SHO.
13. Even otherwise, earlier record of the petitioner is also not
unblemished, he was punished with dismissal from service and by way of
mercy petition he was taken back into the service. Earlier also charges against
the petitioner were serious, which are as under:-
"1. आरोपी आर क (चालक) 204 गोिवंद ारा िदनांक 20-4-2010 को थाना महेश्वर
के मोबाईल वाहन 0 एमपी-03-3113 को िबना िकसी को बताये अपनी मज से ले
जाना, उसे ग े म फॅसा देने क सूच ना नही देना, वाहन को लावा रस हालत म छोडकर
जाना। इस कार शासक य संप का द ु पयोग कर शासन को हािन पहँच ाना व
शासक य संप क सुर ा के ित घोर लापरवाही दिशत करना।
2. आरोपी आर. (चालक) ारा िदनांक 3-6-2010 को व्हीआईपी ूटी के लये
एसएएफ बल को छोडने के दैारान वाहन का दरवाजा खुला होने पर भी रवस ले कर
वाहन चालक के ित लापरवाही कर वाहन के दरवाजे को नुकसान पहॅच ाना। इस कार
शासक य संप 600 पये का अपव्यय कर शासन को हािन पहॅच ाना।
3. आरोपी आर (चालक) ारा िदनांक 6-6-2010 को पु लस लाईन के पानी टकर वाहन
को िबना िकसी को बताये अपनी मज से अपने िनजी काय से महेश्वर ले जाकर िदनांक
7-6-2010 को वापस लाना। इस कार पु लस लाईन के पानी टकर वाहन को
अनावश्यक प से 138 िकलोमीटर चलाकर 27 लीटर डीजल क मत 1066 पये का
अपव्यय कर शासन को हािन पहॅच ाना। "
14. The Apex Court in the case of Central Industrial Security Force &
Others v/s Abrar Ali reported in (2017) 4 SCC 507 in paragraphs - 16, 17,
18 & 19 has held thus:-
"16. We are in agreement with the findings and conclusion o f the
Disciplinary Authority as confirmed by the Appellate Authority and
Revisional Authority on Charge No. 1. Indiscipline on the part of a
member of an Armed Force has to be viewed seriously. It is clear that the
Respondent had intentionally disobeyed the orders of his superiors and
deserted the Force for a period of 5 days. Such desertion is an act of
gross misconduct and the Respondent deserves to be punished suitably.
17. Charge No. 3 was that the Respondent h a d become habitual in
committing indiscipline and disorderliness. A reference was made to two
major penalties of deduction of pay and o n e mi no r punishment of
reduction of seven days salary earlier. The Disciplinary Authority found
that the Respondent did not improve in spite of being punished earlier.
The High Court agreed with the contention of the Respondent and held
that a fresh enquiry cannot be initiated into a misconduct for which a
delinquent had already suffered a penalty. The High Court found that any
penalty imposed under Charge No. 3 would amount to double jeopardy.
We disagree with the finding of the High Court as we are of the view that
the Respondent was not being tried again for previous misconduct. As the
Respondent did not improve in spite of being punished earlier and had
be c o me habitual in indiscipline and disorderliness, the Disciplinary
Authority rightly found Charge No. 3 as proved. The desirability of
continuance of the Respondent was considered on the basis of his past
conduct which does no t amount to double jeopardy. In any event, past
conduct of a delinquent employee can be taken into consideration while
imposing penalty. We are supported in this view by a Judgement of this
Court in Union of India v. Bishamber Das Dogra, reported in (2009) 13
SCC 102 held as follows:
"30. ...... But in case of misconduct o f gr ave nat ur e or
indiscipline, even in the absence of statutory rules, the authority
may take into consideration the indisputable past conduct/service
record of the employee for adding the weight to the decision of
imposing the punishment if the facts of the case so require."
18. The Respondent was exonerated of Charge No. 2 by t he Appellate
Authority. The Revisional Authority confirmed the order of the Appellate
Authority. The judgment relied upon by the Respondent in G.M. Tank Vs.
State of Gujarat and Ors.(supra) is not relevant as i n that case the point
for consideration was whether the departmental proceedings can be held
after acquittal of a public servant in a criminal case on similar set of
facts.
1 9 . Though we are of the view that the High Court ought no t t o have
interfered with the order passed by the Disciplinary Authority, the
penalty of dismissal from service is not commensurate with delinquency.
The Respondent was found guilty of desertion of the Force for a period
o f five days and not improving his conduct in spite of imposition of
penalties on three occasions earlier. Fo r t he above delinquencies, the
penalty of dismissal from service is excessive and harsh. In our view, the
penalty of compulsory retirement would meet the ends of justice. We are
informed by the counsel for the Appellants that the Respondent is
entitled for pension as he has completed 10 years of service. In order to
avoid any controversy, we direct that the Respondent shall be entitled for
notional continuity of service till t he date o f completion o f minimum
service required to make him eligible for pension. He will not be entitled
for payment of salary and allowances for that period"
15. All the aforesaid charges were found proved against the petitioner and
he was dismissed from service vide order dated 28.04.2011, but by way of
mercy petition he was taken back into the service. Therefore, second time
punishment of dismissal from service after conducting departmental enquiry
cannot be said to be excessive and disproportionate to the proven misconduct.
16. In view of the above, Writ Petition stands dismissed.
(VIVEK RUSIA)
JUDGE
Ravi
