Madhya Pradesh High Court
Ashok Singh Sikarwar vs State Of M.P. on 11 September, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:21286
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
ON THE 11th OF SEPTEMBER, 2025
WRIT PETITION No. 3519 of 2010
ASHOK SINGH SIKARWAR
Versus
STATE OF M.P. AND OTHERS
Appearance:
Shri M.P.S. Raghuvanshi - Senior Advocate with Shri Manish Gurjar -
Advocate for the petitioner.
Shri B.M. Patel - Government Advocate for the respondent/State.
ORDER
This petition under Article 226 of the Constitution of India has been
filed by the petitioner seeking the following reliefs:-
(i) That, the order dated 05.05.2010 Annexure P/1 passed by the
respondent No.2-Inspector General of Police, Gwalior Zone,
Gwalior may kindly be directed to be set aside.
(ii) That, the order dated 16.04.2009 Annexure P/2 passed by the
respondent No.3-Deputy Inspector General of Police, Gwalior
Zone, Gwalior may kindly be directed to be set aside.
(iii) That, the order dated 19.08.2008 Annexure P/3 passed by the
respondent No.5-Superintendent of Police, District Vidisha may
kindly be directed to be set aside.
(iv) That, the increment of the petitioner stopped with cumulative
effect vide order Annexure P/3 may kindly be directed to be
restored forthwith and the period of the petitioner from 19.11.2006
to 16.05.2007 may kindly be directed to be regularized in terms of
order dated 29.12.2007 passed by the respondent No.4-
Superintendent of Police, District Vidisha.
(v) That, the other relief doing justice including cost be awarded.
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2. The brief facts of the case in short are that at the relevant point of
time, the petitioner was holding the post of Head Constable and he was
posted in Ashoknagar. Thereafter, the petitioner has been transferred from
Ashoknagar to Shivpuri. In compliance of the said order, the petitioner could
not join due to his serious ailment on the transferred place. Subsequently that
order of transfer was amended by the transfer of the petitioner to Vidisha and
consequently the petitioner submitted his joining in Vidisha on 17.05.2007.
The Superintendent of Police, Vidisha passed an order dated 29.12.2007 by
which the period of absent of the petitioner for 179 days between 19.11.2006
to 16.05.2007 was regularized in which short/commuted leave for 90 days
between 19.11.2006 to 16.02.2007 and earned leave for 89 days between
17.02.2007 to 16.05.2007.
3. Learned counsel for the petitioner submitted that the respondent
No.4-Superintendent of Police, Vidisha passed an another order dated
19.08.2008 (Annexure P/3) whereby without giving any opportunity of
hearing to the petitioner, he recalled and cancelled the earlier order dated
29.12.2007. The Superintendent of Police, Shivpuri could have acquired the
jurisdiction to suspend the petitioner only after submission of joining by the
petitioner in pursuant to the earlier order of transfer. The petitioner has never
joined in Vidisha, therefore, the Superintendent of Police, Vidisha is not
competent to issue impugned order dated 19.08.2008 (Annexure P/3).
Thereafter, charge-sheet has been issued and departmental enquiry has been
conducted and show cause notice dated 18.10.2008 has been issued for
imposing the punishment. Thereafter, by order dated 16.04.2009 (Annexure
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P/2), punishment of stopping one increment with cumulative effect for a
period of one year has been imposed. Thereafter, the petitioner has preferred
the appeal against the punishment order, the appeal has also been dismissed
by order dated 05.05.2010.
4. Learned counsel for the petitioner further submitted that the
petitioner challenged the aforesaid impugned order mainly on the ground that
before cancelling/ recalling the order dated 29.12.2007, no opportunity of
being heard has been provided to the petitioner even no show cause notice
has been issued by the respondents and the second ground is that the
petitioner was suspended in Shivpuri, however, the petitioner never joined in
Shivpuri the question of suspension does not arise. The Superintendent of
Police, Shivpuri could have acquired the jurisdiction to suspend the
petitioner only after submission of joining by the petitioner in pursuant to the
earlier order of transfer. Thus, the reasoning assigned in the order dated
19.08.2008 passed by the respondent No.4-Superintendent of Police, District
Vidisha is contrary to law. It is further submitted that order dated 29.12.2007
(Annexure P/4) has been issued by Additional Superintendent of Police,
Vidisha and recalling/cancellation order was issued by Superintendent of
Police, Vidisha. Both are equal rank Officers and the same cannot be
cancelled or recalled by the same rank Officer. Order dated 29.12.2007 has
already been executed by respondent and once the order has already been
executed the same rank Officer cannot cancel the same without giving any
opportunity of being heard. He also relied upon the judgments of Hon'ble
Supreme Court in the case of Gajanan L. Pernekar Vs. State of Goa and
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another reported in (1999) 8 SCC 378 and Chairman-cum-Manager Director,
Coal India Ltd. & Ors. Vs. Ananta Saha and others reported in (2011) 5 SCC
5. Per contra, learned Government Advocate supported the impugned
order and prayed for dismissal of the present petition.
6. Heard learned counsel for the parties and perused the record.
7. A specific query was put to the learned Government Advocate as to
whether, prior to issuing the order dated 19.08.2008, any show cause notice
was issued or opportunity of hearing was provided to the petitioner.
However, the learned Government Advocate was unable to respond to the
aforesaid query and even as per Annexure P/3, there is not mentioned that
before issuing order dated 19.08.2008 (Annexure P/3), any show cause
notice for opportunity of being heard has been provided to the petitioner.
There is specific pleading in the petition at various place that before issuing
the impugned order dated 19.08.2008, no opportunity of being heard has
been provided to the petitioner and in the reply, the respondents have not
denied the aforesaid fact. Order dated 29.12.2007 (Annexure P/4) has been
issued by Additional Superintendent of Police, Vidisha and
recalling/cancellation order was issued by Superintendent of Police, Vidisha.
Both are equal rank Officers and the same cannot be cancelled or recalled by
the same rank Officer. Order dated 29.12.2007 has already been executed by
respondent and once the order has already been executed the same rank
Officer cannot cancel the same without giving any opportunity of being
heard. The benefit of order dated 29.12.2007 could not have been taken away
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from the petitioner without affording him any opportunity of hearing.
8. As per judgment of Hon'ble Supreme Court in case of Gajanan L.
Pernekar (supra), before recalling and administrative order passed in favour
of the petitioner, an opportunity of being heard and show cause notice is
necessary. Para 8 of this judgment reads as under:-
"8. The manner in which the order dated 21st/22nd January, 1999
came to be made was, to say the least, not proper. The appellant
was denuded of the benefits of the order dated 16.2.1994 unheard.
There has been a breach of the principle of natural justice and a
violation of fair play in action. The earlier order made in favour of
the appellant as early as on 16.2.1994 was rescinded without
giving any opportunity to the appellant to show cause against it.
Absorption of the appellant as Headmaster of Government High
School by the order dated 16.2.1994 had not been put in issue
through any proceedings by any party at any point of time. That
benefit could not have been taken away from the appellant without
affording him any opportunity of hearing, even where the
absorption as Head Master of High School had been put in issue.
The principles of natural justice have been respected in their
breach. The order dated 21st/22nd January, 1999 was made by the
respondents influenced by the observations contained in para-2 of
the order of the High Court (supra), which observations, we have
already found, were not at all called for. In the facts and
circumstances of the case, the order dated 21st/ 22nd January,
1999 cannot be sustained and we accordingly set it aside.
Consequently, we allow this appeal and set aside the observations
of the High Court contained in para-2 of its judgment dated 14th
July, 1998 (supra) as well as the follow-up order made by the
State on 21st/22nd January, 1999. As a result the order dated
16.2.1994 would stand revived. We grant liberty to the appellant
to make a representation to the State Government for grant of
consequential benefits flowing from the order of 16.2.1994, as
was directed by the High Court itself. In case a representation is
filed by the appellant before the concerned department within six
weeks from the date of this order, the same shall be decided by the
department within a period of twelve weeks from the date of the
receipt of the copy of the representation. The representation shall
be decided by the department uninfluenced by the order made on
21st/22nd January, 1999 as well as the observations made in para-
2 of the High Court order (supra), which, we have set aside."
9. As per judgment of Hon'ble Supreme Court in case of Chairman-
cum-Manager Director, Coal India Ltd. (supra), when the earlier proceedings
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are quashed, the consequential proceedings also stand quashed. Paras 32 and
33 of this judgment read as under:-
"32. It is a settled legal proposition that if initial action is not in
consonance with law, subsequent proceedings would not sanctify
the same. In such a fact situation, the legal maxim sublato
fundamento cadit opus is applicable, meaning thereby, in case a
foundation is removed, the superstructure falls.
33. In Badrinath v. Govt. of T.N. this Court observed that once the
basis of a proceeding is gone, all consequential acts, actions,
orders would fall to the ground automatically and this principle of
consequential order which is applicable to judicial and quasi-
judicial proceedings is equally applicable to administrative orders.
(See also State of Kerala v. Puthenkavu N.S.S. Karayogam and
Kalabharati Advertising v. Hemant Vimalnath Narichania)."
10. In the present case, order dated 19.08.2008 was issued without
giving any opportunity of being heard and without giving any show cause
notice to the petitioner therefore, the impugned order dated 19.08.2008 is
liable to be quashed and the consequential order dated 16.04.2009 (Annexure
P/2) and order dated 05.05.2010 (Annexure P/1) are hereby quashed and the
increment of the petitioner, which was stopped by order dated 19.08.2008, is
directed to be restored forthwith and the period from 19.11.2006 to
16.05.2007 is ordered to be regularized in terms of the order dated
29.12.2007 (Annexure P/4).
11. With the aforesaid, the present petition is allowed.
(ANAND SINGH BAHRAWAT)
JUDGE
Monika
