Madhya Pradesh High Court
Santosh Sharma vs State Of Madhya Pradesh on 6 March, 2024
Author: Anand Pathak
Bench: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
WRIT PETITION No. 3264 of 2013
BETWEEN:-
SANTOSH SHARMA S/O RAMSAHAY
PANDA, AGED ABOUT 45 YEARS,
OCCUPATION: CONSTABLE NO.311
PRES.POSTED AS DIST.CRIME BR. O/O
SUPERINTENDENT OF POLICE DATIA
DIST.DATIA M.P. (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ARUN KATARE - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY HOME
DEPARTMENT GOVT. OF M.P. VALLABH
BHAWAN BHOPAL M.P. (MADHYA
PRADESH)
2. THE DIRECTOR GENERAL OF POLICE,
PHQ BHOPAL
3. THE SUPERINTENDENT OF POLICE,
DISTRICT DATIA (M.P.)
.....RESPONDENTS
(BY SHRI RAVINDRA DIXIT - GOVT. ADVOCATE)
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Reserved on : 04-03-2024
Delivered on : 06-03-2024
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This petition having been heard and reserved for orders
coming on for pronouncement this day, delivered the following:-
ORDER
With consent heard finally.
1. The present petition is preferred by petitioner under Article
226 of the Constitution seeking following reliefs:-
"(i) That, the Hon'ble Court may kindly be
pleased to allow this Writ petition;
(ii) That, the charge-sheet Annexure P/1 dated
1.11.2000 issued by the respondent No.3 to the
petitioner may kindly be directed to be quashed.
(iii) That, the order of punishment dated
22.01.2002 Annexure P/2 issued by the respondent
No.3 may kindly be directed to be quashed.
(iv) That, the order Annexure P/3 dated 22.08.2007
issued by the respondent No.3 may kindly be
directed to be quashed.
(v) That, the order dated 7.8.2002 Annexure P/4
may kindly be directed to be quashed.
(vi) That, the order dated 9.12.2010 Annexure P/5
passed by Inspector General of Police, Chambal
Zone, Gwalior may kindly be directed to be
quashed.
(vii) That, any other just, suitable and proper
relief, which this Hon'ble Court deems fit, may also
kindly be granted to the petitioner. Costs be also
awarded in favour of the petitioner."
2. Precisely stated facts of the case are that petitioner was
initially appointed on the post of Constable on 18.03.1992 and he
was performing his duties at the relevant point of time as Police
Constable. On 8.6.2000, the petitioner was posted at Police Station
Seondha, District Datia and he faced the allegations that one
Manoj Kumar Dubey after attending his date in the trial Court
when passed nearby the Police Station Seondha around 4:00 PM
then at the instance of Sub Inspector Anar Singh Sikarwar, A.S.I.
B.N. Chaturvedi, petitioner caught hold of him and abused him
and caused marpeet. They took him to the Police Station Seondha
and confined him in custody till 10.06.2000 without any reason
and thereafter released him.
3. On the complaint made against the petitioner and other
persons, investigation carried out and enquiry was made by the
Superintendent of Police, Datia and charge sheet was issued by
him vide charge sheet dated 01.11.2000.
4. The departmental enquiry was conducted by Additional SP
Datia Shri Rajendra Prasad and allegations were found proved.
Therefore, petitioner was inflicted with punishment of stoppage of
one increment for one year with cumulative effect vide order dated
22.01.2002.
5. It appears that an appeal was preferred by petitioner before
the Inspector General of Police, Chambal Zone, Gwalior.
Appellate authority considered the appeal and rejected the same
vide order dated 7.8.2002. Thereafter, after more than five years of
appellate order, an amended order has been passed by SP Datia on
22.08.2007 (Annexure P/3) and deleted the word "one year" from
the punishment order. It means the stoppage of one increment was
inflicted with cumulative effect and punishment was not confined
to one year only. It had ever lasting effect impliedly.
6. It appears that when petitioner suffered before the appellate
authority vide order dated 22.01.2002 preferred a mercy petition
before the IGP Chambal Zone, Gwalior, then said mercy
petition/revision got dismissed. Therefore, this petition has been
preferred.
7. It is the submission of learned counsel for petitioner that
authorities did not consider the case in correct perspective and
passed illegal and arbitrary orders. According to him, order dated
22.08.2007 passed by SP Datia (respondent No.3 herein) is clear
violation of Regulation 270 (4) of Police Regulations, where it has
been held that the revising authority may reasons to be recorded in
writing exonerate or may remit, vary or enhance the punishment
imposed over the delinquent, provided a notice has been served
and opportunity is given for being heard. Here, no such
opportunity was given.
8. Learned counsel for petitioner further refers the fact that in
departmental enquiry no presenting officer was appointed and
enquiry officer acted as Presenting Officer. Therefore, enquiry
officer vitiated the enquiry. He also referred the Police Regulation
226 to submit that penalty appears to be excessive in nature and it
is contrary to Police Regulation 226 (iv).
9. It is the submission of learned counsel for petitioner that
petitioner was Police Constable at the relevant point of time and
departmental enquiry was held along with Sub Inspector Anar
Singh Sikarwar and ASI B.N. Chaturvedi and when three officers
of different posts were enquired then as per Rule 18 of Madhya
Pradesh Civil Services (Classification, Control and Appeal) Rules,
1966 (hereinafter referred as "the CCA Rules") permission from
the empowered authority/competent authority was required to be
taken. Same has not been done. Therefore, petition deserves to be
allowed. He relied upon judgments in Mahesh Kumar
Shrikishan Tiwari Vs. State of M.P. and others, 1985 MPLJ
516, Navin Kumar v. State of M.P. and Ors., (1989 MPLJ 514),
S.N. Singh Vs. State of M.P. and others, 2005(2) MPLJ 18,
Jagdish Rathi vs. State of M.P. and ors., 2009(II) MPWN 98,
Ramesh Chand Rathore vs. State of M.P. and ors., 2010 (2)
MPLJ 245.
10. Learned counsel for respondents opposed the prayer and on
the basis of return the allegations were rebutted. According to
State counsel, joint enquiry was held and after recording evidence
the enquiry officer submitted his report which is filed as Annexure
R/1 and after considering the report punishment has been inflicted.
11. Heard the learned counsel for the parties and perused the
documents appended thereto.
12. This is a case where petitioner who was working as Police
Constable at the relevant point of time in year 2000 was subjected
to departmental enquiry along with two of his colleagues namely
SI Anar Singh Sikarwar and ASI B.N. Chaturvedi.
13. A peculiar fact surfaced in the present case is that after
institution of departmental enquiry, the enquiry was conducted by
enquiry officer (without any presenting officer) and enquiry report
was submitted vide Annexure R/1 in the month of December
2001. On 22.01.2002 SP Datia after considering the enquiry report
and soliciting reply found them guilty of misconduct and given
punishment of stoppage of one increment for one year with
cumulative effect. In punishment order, stoppage of one year was
mentioned, therefore, it appears that intention was to stop
increment for one year which was effectively non-cumulative in
nature. Against the said order dated 22.01.2002 petitioner
preferred appeal which was dismissed by I.G. Chambal Zone,
vide order dated 7.8.2002. When this appeal was dismissed and
impugned order dated 22.01.2002 attained finality then SP Datia
had no occasion to amend or revise the order dated 22.01.2002 by
passing an amended order dated 22.08.2007 (Annexure P/3).
14. Petitioner stands right when he contends that if any order of
revision is being passed by the authority concerned then he should
have been given an opportunity of hearing. Profitable reliance can
be placed over Police Regulation 270.
15. Regulation 270 of Madhya Pradesh Police Regulations
discusses such exigency. Same is reproduced for ready reference:-
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 made in that
behalf by the person against whom the order has
been passed."
Explanation:- For the purpose of 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 any
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.
16. From Perusal of Regulation 270, it is gathered that powers
of revision are available to any authority superior to the authority
making the original order or appellate order as the case may be.
Here when SP Datia passed the original order dated 22.01.2002
and inflicted punishment and same got affirmed by appellate
authority vide order dated 7.8.2002 then SP Datia had no authority
to revise the order that too after 5 years on 22.08.2007. By the said
order dated 22.08.2007 word - "one year" was deleted and
remaining contents of the order remained intact, then it appears
that removal of one year made the case of punishment as
punishment with cumulative effect. Then certainly Regulation 226
may enter into the realm of discussion because Police Regulation
226 deals in respect of the punishments to be given for any
particular offence. Police Regulation 226 is reproduced for ready
reference as under:
"226. Punishments- Offences for which given.- The
following rules should be observed in determining
what penalty should be awarded for any particular
offence:-
(i) (a) Dismissal is the last resource and should,
ordinarily not be inflicted until all other means of
corrections have failed.
(b) If dismissal is considered too severe a punishment
for sub-Inspector he should be removed from the
service (This does not amount to dismissal.)
Note- Dismissal order would be effected on the
same date when it is passed or on the same day when the
dismissed person relieved and shifted from the service.
(ii) xxxxx
(iii) xxxxx
(iv) With holding of increment either temporary or
permanent (or grade reduction in the case of head
Constables) is a suitable punishment for all cases of
serious dereliction of duty. It may also be inflicted for
culpable ignorance of police procedure, laziness or
apathy in conducting the work of the police station, and
the like. Fair warning should be given in every instance
and opportunity for amendment afforded before the
punishment is awarded.
In the case of a Constable the period of deprivation
shall not exceed a year nor is it advisable that a
constable should be deprived of more than or
Increment at a time. If After a departmental enquiry
for a subsequent offence it is found advisable to
inflict. This punishment on a constable already
under reduction the proper order to pass is one
extending the reduction by a period not exceeding
one year.
Note- When an officer in a graded posts is reduced
permanently his place in the grade or to which he is
reduced must be determined at the time of passing the
order if reduction with due regard to the amount of
punishment deserved.
(v) An increment which has fallen due may be
withheld for a definite period for inefficiency or
unsatisfactory service. In the case of a Constable, it
shall not be withheld for more than one year in the
first instance. If a subsequent offence Justifies
extension of this period, a departmental enquiry is
necessary.
Note:-In all case where orders are passed
withdrawing or withholding an increment, it must be
clearly stated whether subsequent increments are to be
postponed or not. In the cases of Constables they
should not be postponed."
17. Therefore, order dated 22.08.2007 in fact goes contrary to
the spirit of Police Regulation 226 in substance because
Regulation 226 prescribes infliction of punishment in moderate
manner and understandably so because police constable stands at
the bottom of the pyramid in hierarchy of police employees.
Consideration of the offence and infliction of punishment appears
to be graded as one climbs up in the hierarchy and apparently that
aspect has been referred in Regulation 226. When the impugned
proceedings ignore Spirit of Regulation 226 and ignores the
Procedure prescribed in Regulation 270, then the case of
respondent faulters for such punishment and manner of infliction.
18. Another aspect deserves consideration is that joint enquiry
conducted in the case. Petitioner is Constable whereas two other
delinquents were Sub Inspector and Assistant Sub Inspector. No
mechanism as such is being provided in Police Regulations in
situation, when any joint enquiry of different officers/employees is
to be conducted. For that purpose provisions of the CCA Rules are
to be borrowed. Therefore, Rule 18 comes into play in the present
case. Rule 18 of CCA Rules contemplates common proceedings.
For ready reference, the said Rule is quoted below:-
18. Common Proceedings.- (1) Where two or more
Government servants are concerned in any case, the
Governor or any other authority competent to impose
the penalty of dismissal from service on all such
Government servants may make an order directing
that disciplinary action against all of them may be
taken in a common proceedings.
Provided that the powers conferred on the Governor
under this rule shall in case of Judicial officers, be
exercised by the chief justice.
Note.- If the authorities competent to impose the
penalty of dismissal on such Government servants are
different, an order for taking disciplinary action in a
common proceeding may be made by the highest of
such authorities with the consent of the others.
(2) Subject to the provisions of sub-rule (3) of rule 12,
any such order shall specify:-
(i) the authority which may function as the
disciplinary authority for the purpose of such
common proceedings;
(ii) the penalties specified in rule 10 which such
disciplinary authority shall be competent to
impose; and
(iii) whether the procedure laid down in rule 14
and rule 15 or rule 16 shall be followed in the
proceeding.
19. A constant view has been taken by this Court on the point
that if petitioner is Constable and his joint enquiry if is held along
with other employees (SI and ASI) without permission from the
competent authority then enquiry is vitiated. (SEE: Mahesh
Kumar Shrikishan Tiwari Vs. State of M.P. and others, 1985
MPLJ 516, Navin Kumar v. State of M.P. and Ors., (1989
MPLJ 514), S.N. Singh Vs. State of M.P. and others [2005(2)
MPLJ 18], Jagdish Rathi vs. State of M.P. and ors., 2009(II)
MPWN 98, Ramesh Chand Rathore vs. State of M.P. and ors.,
2010 (2) MPLJ 245).
20. Therefore, in the given facts and circumstances of the case,
it appears that respondents caused illegality in pursuing the
departmental enquiry against petitioner. Order dated 22.08.2007
by S.P. Datia, could not have been passed at such belated stage
when appellate authority (I.G.P. Chambal Region) also dismissed
the appeal. Similarly, permission was required to be taken from
the competent authority before proceeding for common enquiry.
21. Resultantly, petition stands allowed and impugned orders
dated 1.11.2000, 22.01.2002, 22.08.2007, 7.8.2002 and 9.12.2010
are hereby set aside. Since matter was pending for the last almost
23-24 years therefore, matter is not remanded back. By this time
petitioner must have learnt the lesson hard way and hopefully
would work sincerely, honestly and diligently. Salary amount, if
any, withheld in pursuance to punishment orders be paid to him.
22. Petition stands allowed and disposed of in above terms.
(ANAND PATHAK)
JUDGE
van
VISHAL
UPADHYAY
2024.03.06
20:05:59
+05'30'
