Madhya Pradesh High Court

Brajesh Kumar Sharma vs Home Department on 23 April, 2025

Author: Subodh Abhyankar

Bench: Subodh Abhyankar

                                                          -1-                   W.P.NO.8917/2019




                               IN THE HIGH COURT OF MADHYA PRADESH
                                            AT I N D O R E
                                                           BEFORE
                                  HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
                                                   ON THE 23rd April, 2025
                                            WRIT PETITION No. 8917 of 2019
                                            BRAJESH KUMAR SHARMA
                                                     Versus
                                          HOME DEPARTMENT AND OTHERS
                          Appearance:
                          Shri Pradyumna Kibe - advocate for the petitioner.
                          Ms.Ashi Vaidya, panel lawyer appearing on behalf of Advocate General.
                          HEARD ON :              11/2/2025
                          RESERVED ON:            23/4/2025
                          _____________________________________________________________

                                                            ORDER

1] This petition has been filed by the petitioner under Article 226 of the Constitution of India seeking the following relief:-

"1.Quashing order dated 21.12.2017 passed by respondent no.3 (Annexure P/3)

2.Quashing order dated 30.01.2019 passed by respondent no.2(Annexure P/6)

3. Directing the respondents to reinstate the petitioner with entire continuity of service alongwith back wages;

4. Any other relief deemed fit and proper in the facts and circumstances of the case;

5. Costs be awarded to the petitioner."

2] The petitioner, an ex-Head Constable (Driver), is aggrieved by the order dated 21.12.2017 (Annexure P/3), passed by the Inspector

General of Police/respondent no.3 herein; whereby, the petitioner has been dismissed from service, as he was posted as the Head Constable (Driver), on the ground of a case of theft having lodged against him. The petitioner is also aggrieved by the order dated 30.1.2019 (Annexure P/6), passed by the Director General of Police/respondent no.2 whereby, his appeal arising out of the order dated 21.12.2017, has also been dismissed.

3] In brief, the facts of the case are that the petitioner was appointed on the post of police constable (driver) on 21.1.1998. However, on 20.12.2017, he was suspended from services on account of misconduct, as it was alleged that he had taken a police vehicle- Bolero bearing registration no.MP-03-A-3452 from police station Road, Ratlam to District Dewas without any permission. Post such suspension, the petitioner has also been dismissed from service by the respondent no.3/Inspector General of Police, on the same allegations. In the impugned order, it is mentioned that the petitioner had stolen the aforesaid vehicle, and he was also arrested in connection with the same, and thus, while invoking the powers under Article 311(2) of the Constitution of India holding that the inquiry is not expedient in such matters, the petitioner, has been dismissed from service, and the aforesaid order has also been affirmed by the appellate authority vide its order dated 30.1.2019 holding that no interference is made out. 4] Shri Pradyumna Kibe, learned counsel for the petitioner has

submitted that the impugned order has been passed without conducting any departmental enquiry as envisaged under the M.P. Police Regulation. It is also submitted that the right of the petitioner cannot be curtailed only by referring to Article 311(2) of the Constitution of India.

5] Counsel for the petitioner has also relied upon the decision rendered by the coordinate Bench of this Court in the case of Satya Narayan Vs. State of M.P. Reported as 2003(5) MPLJ 450. It is also submitted that otherwise also, in the impugned order there is no reference as to why holding of the inquiry under the facts and circumstances is reasonably impracticable despite the fact that it was a mere case of alleged theft which is also denied by the petitioner. Thus, it is submitted that without conducting the departmental inquiry and affording any proper opportunity of hearing to the petitioner, the impugned orders could not have been passed .

6] Counsel for the petitioner has also submitted that in a subsequent development, in the RCT.No.2236/2017, the petitioner has already been acquitted in the aforesaid criminal case of theft vide judgment dated 28.8.2024.

7] A reply to the petition has also been filed by the respondents traversing the averments made in the petition, and it is also stated that in the criminal case the charge sheet has already been filed against the petitioner, and the witnesses have also been examined, although

counsel for the respondents has not denied the fact that the petitioner has already been acquitted vide judgement dated 28.8.2024 passed in RCT. No.2236/2017.

8] Heard learned counsel for the parties and perused the record. So far as Article 311 of the Constitution of India is concerned, since the respondents have invoked the power under Article 311(2)(b) of the Constitution of India, it would be relevant to refer the said Article at this juncture only, which reads as under:-

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State:

(1)No person who is a member of a civil service of the Union or an al l.India service or a civil service of a State or holds a civil post under the Union or a Slate shall be dismissed or removed by a authority subordinate to that by which he was appointed.

(2)No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges;

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:

Provided further that this clause shall not apply--

(a)where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b)where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c)where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry. (3)If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred

to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."

9] In this backdrop, it would also be necessary to see as to how the impugned order dated 21.12.2017 passed by respondent no.3 (Annexure P/3) has been coined by the respondent no.3/Inspector General of Police to record its satisfaction that the inquiry is not necessary. For the ready reference, the impugned order is also being reproduced herein, the same reads as under:-

" वविशशेष शशाखशा, मधध्यप्रदशेश भभोपशाल :: आदशेश ::

कशाध्यशार्यालध्य कशेतत्रीध्य अधत्रीकक वविशशेष शशाखशा रतलशाम कभो बबुलशेरभो क्रमशामांक एमपत्री 03-ए-3452 शशासककीध्य कशाध्यर्या हशेतबु आविमांटटित ककी गई थत्री। इसकशे चशालक आरकक (चशालक) गभोवविनद ससमांह विशासकलशे थशे। टदनशामांक 16.12.17 कभो प्रशातत 07.30 बजशे आरकक (चशालक) गभोवविनद ससमांह विशासकलशे दशारशा दशेखशा गध्यशा टक विशाहन अपनशे सथशान पर नहहमां थशा जजस पर सशे उसकशे दशारशा अजशात आरभोपत्री कशे वविरुद अप०क्र० 789/17 धशारशा- 379 भशादमांववि थशानशा सटिशेशन रभोड रतलशाम मम दजर्या टकध्यशा गध्यशा। वविविशेचनशा कशे ददौरशान थशानशा सटिशेशन रभोड रतलशाम पबुसलस नशे प्र०आर० (चशालक) ब्रजशेश शमशार्या कभो सगरफतशार कर उनसशे विशाहन जप टकध्यशा तथशा आरभोपत्री प्र०आर० (चशालक) ब्रजशेश शमशार्या कभो नध्यशाध्यशालध्य रतलशाम मम प्रसतबुत टकध्यशा जहशाह सशे आरभोपत्री कभो कभो जजलशा जशेल मम सनरुद टकध्यशा गध्यशा। वविविशेचनशा मम ददौरशान ध्यह सपष हबुआ हह टक आरभोपत्री प्र०आर० (चशालक) ब्रजशेश शमशार्या दशेविशास मम टडध्ययूटिहरत थशे विहशाह सशे रशातत्री मम वबनशा टकसत्री सयूचनशा वि अनबुमसत कशे दशेविशास सशे रतलशाम टशेन सशे आध्यशे वि विशाहन चभोरह कर दशेविशास लशे गध्यशे ।

प्र०आर० (चशालक) ब्रजशेश शमशार्या कशा उक ककृतध्य ध्यह प्रदसशर्यात करतशा हह टक उनमम वविभशाग कभो कसत पहबुहचशानशे ककी प्रविकृवत हह और उनककी ध्यह प्रविकृवत वविशशेष शशाखशा जहसशे महतविपयूरर्या वविभशाग कशे सलध्यशे कतई उसचत नहहमां हह। इस समांबमांध मम

समांवविधशान कशे अनबुचचशेद 311(2) कशे प्रशाविधशानन कशे अनबुरूप औपचशाररक वविभशागत्रीध्य जशाहच टकध्यशा जशानशा वध्यविहशाररक नहहमां हह।

अतत मम मकरमांद दशेऊसकर, पबुसलस महशासनरहकक गबुपविशातशार्या मधध्यप्रदशेश भभोपशाल समांवविधशान कशे अनबुचचशेद 311 (2) (बत्री) कशे प्रशाविधशानन कशे अनबुसशार प्र०आर० (चशालक) ब्रजशेश शमशार्या कभो सशेविशा सशे बखशार्यासत करनशे कशा आदशेश दशेतशा हयूह। ध्यह आदशेश ततकशाल प्रभशावि सशे लशागयू हभोगशा।"

10. It is apparent from the aforesaid order that no such satisfaction has been recorded by the authority that as to why it is not reasonably practicable to hold the enquiry in the case of petitioner's misconduct which is the mandate of Article 311(2)(b) of the Constitution of India.

11. The Supreme Court in the case of Tarsem Singh Vs. State of Punjab reported in (2006) 13 SCC 581 has held as under:-

"11. We have noticed hereinbefore that the formal inquiry was dispensed with only on the ground that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means. No material has been placed or disclosed either in the said order or before us to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document. It is further evident that the said order of dismissal was passed, inter alia, on the ground that there was no need for a regular departmental inquiry relying on or on the basis of a preliminary inquiry. However, if a preliminary inquiry could be conducted, we fail to see any reason as to why a formal departmental inquiry could not have been initiated against the appellant. Reliance placed upon such a preliminary inquiry without complying with the minimal requirements of the principle of natural justice is against all canon of fair play and justice. The Appellate Authority, as noticed hereinbefore, in

its order dated 24-6-1998 jumped to the conclusion that he was guilty of grave acts of misconduct proving complete unfitness for police service and the punishment awarded to him is commensurate with the misconduct although no material therefor was available on record. It is further evident that the Appellate Authority also mis-directed himself in passing the said order insofar as he failed to take into consideration the relevant facts and based his decision on irrelevant factors.

(emphasis supplied)

12. In view of the aforesaid decision and mandate of Article 311(2)

(b) of the Constitution India, coupled with the fact that the petitioner has already been acquitted vide judgement dated 28.8.2024 passed in RCT. No.2236/2017, this court has no hesitation to hold that the respondents have erred in dismissing the petitioner's service without conducting an enquiry as is required under the service law.

13. Accordingly, the petition stands allowed. The impugned order dated 21.12.2017 (Annexure P/3) and order dated 30.1.2019 (Annexure P/6) are hereby quashed and set aside. However, with liberty to the respondents to conduct a departmental enquiry against the petitioner, if so advised, in accordance with law.