[Cites 21, Cited by 0]
Madhya Pradesh High Court
Sudhir Singh Kushwah vs State Of M.P. on 12 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
1 WP-3878-2012
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
ON THE 12th OF JANUARY, 2026
WRIT PETITION No. 3878 of 2012
SUDHIR SINGH KUSHWAH
Versus
STATE OF M.P. AND OTHERS
Appearance:
Shri Siddharth Sharma - learned counsel for petitioner.
Shri Rajendra Jain - learned Government Advocate for
respondent/State.
ORDER
The present petition has been filed under Article 226 of the
Constitution of India seeking the following reliefs:-
" It is, therefore, most humbly prayed that the instant
petition
may kindly be allowed and a writ of mandamus and/or a
suitable writ, order or direction in the nature of a writ be
issued against the respondent and following reliefs may
kindly be granted:-
i- The orders annexures P/1 to P/4 may kindly be
quashed being void-ab-initio.
Any other relief which this Hon'ble Court deems fit in
the facts and circumstances of the case same may kindly
be granted to the petitioner.
2. Learned counsel for Petitioner submits that at the relevant point of
time, petitioner was posted as Sub-Inspector. A charge-sheet was issued,
whereafter petitioner submitted a reply to the charge-sheet. Subsequently, the
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
2 WP-3878-2012
Disciplinary Authority appointed the Enquiry Officer; however, no
Presenting Officer was appointed by the Disciplinary Authority. The entire
enquiry was conducted by Enquiry Officer himself, who acted as the
Presenting Officer. It is further submitted that the Disciplinary Authority
supplied a copy of the Enquiry Report, and the petitioner submitted a
detailed reply to Annexure P/5 dated 09.05.2010. Thereafter, the
Disciplinary Authority passed an order dated 10.07.2010, which is non-
speaking and unreasoned.
Learned counsel for the Petitioner further submitted that without
considering the reply submitted by the petitioner and without considering the
facts and grounds raised by petitioner, non-speaking and unreasoned
punishment order dated 10-7-2010 was issued by S.P. Gwalior. Learned
counsel for petitioner further submits that the respondents/Disciplinary
Authority has not assigned any reasons for rejecting the petitioner's reply,
which is contrary to judgment reported in M/s Kranti Associates Pvt. Ltd. &
Anr. v. Masood Ahmed Khan & Ors. , reported in (2010) 9 SCC 496.
Learned counsel for petitioner further submits that thereafter petitioner
preferred an appeal which was rejected by impugned order dated 15.10.2010.
3. Per contra, learned counsel for State submits that there is no
infirmity in the order of punishment since petitioner was found guilty of
dereliction of duties and therefore after ascertaining the charges it was found
that petitioner had failed to discharge the duties, therefore, aforementioned
orders passed by the authority is absolutely proportionate and warrants no
interference. It is further submitted that appellate authority also examined
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
3 WP-3878-2012
the entire record and on perusal of the material, the order of competent
authority was affirmed by Appellate Authority. Hence after having proper
adjudication of the matter by the appellate authority nothing remains to be
interfered in the present matter and petition prima-facie being devoid of
substance deserves to be dismissed. It is further submitted that only scope of
interference in the cases of punishment is to examine the manner in which
departmental enquiry is conducted. In the present case, departmental enquiry
was conducted keeping in view of the principle of natural justice and fair
play. On these grounds he prays for rejection of this petition.
4. Heard the learned counsel for the parties and perused the record.
5. Important part of the punishment order dated 10.7.2010 (Annexure
P/3) is quoted herein below:-
"आरोपी ारा तुत उ र म तक दया गया है क
उसके व आरोप मा णत नह है , जॅ ाचकता
अिधकार ारा सा य का आंकलन सह प से
नह कया गया है । उसके ारा तुत सा य
गलत न होकर थाना उट ला े के ह िनवासी है ।
कु यात बदमाश िनहाल िसंह के भय के कारण
सह नाम से उप थत नह ं हुए है । आरोपी का तक
वीकारयो य नह है , वभागीय जॅ ाच म आरोपी
के व आरोप मा णत पाये गये है । इस संबंध
म जला बदर करण क सुनवाई करने वाले
अिधकार ारा आप य क गई है ।
अतः ता वत द ड म कोई कमी नह करते
हुए उ कृ य के िलये आरोपी उपिनर क सुधीर
िसंह कुशवाह, त का. जला वािलयर हाल जला
दितया को आगामी एक वा षक एक वेतनवृ
एक वष के िलए असंचयी भाव से रोकने का द ड
दया जाता है । "
6. From perusal of the punishment order issued by the Disciplinary
Authority dated 10.7.2010, it is clear that the Disciplinary Authority while
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
4 WP-3878-2012
passing an order imposing punishment upon petitioner, is exercising quasi
judicial power and even the quasi judicial order must be a speaking order.
The Disciplinary Authority must apply its mind to the entire facts and
circumstances and record valid and justifiable reason and all grounds in
support of its conclusion.
7. On perusal of the punishment order, it does not appear to be a
speaking one.
8. It is a settled position in law that when a discretion is vested in an
authority to exercise a particular power, the same is required to be exercised
with due diligence and in reasonable and rational manner. The Hon'ble
Supreme Court in catena of decisions has reiterated time and again the
necessity and importance of giving reasons by the authority in support of its
decision. It has been held that the face of an order passed by a quasi-judicial
authority or even by an administrative authority affecting the rights of parties
must speak. The affected party must know how his case or defence was
considered before passing the prejudicial order.
9. The decision of the Hon'ble Supreme Court in the case of State of
Punjab v/s. Bandip Singh and others reported in (2016) 1 SCC 724 is
relevant to quote. In the said decision it had been held by the Hon'ble
Supreme Court that every decision of an administrative or executive nature
must be a composite and self-sustaining one, in that it should contain all the
reasons which prevailed on the official taking the decision to arrive at his
conclusion.
10. In the same judgment in paragraph 7, the Hon'ble Supreme Court
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
5 WP-3878-2012
clarifies that the Government does not have carte blanche to take any
decision it chooses to; it cannot take a capricious, arbitrary or prejudiced
decision. Its decision must be informed and impregnated with reasons.
Paragraph 7 of the said decision is quoted as under:-
"7. The same principle was upheld more recently in Ram Kishun
v. State of U.P. (2012) 11 SCC 511 : (2013) 1 SCC (Civ) 382.
However, we must hasten to clarify that the Government does not
have a carte blanche to take any decision it chooses to; it cannot
take a capricious, arbitrary or prejudiced decision. Its decision
must be informed and impregnated with reasons.
This has already been discussed threadbare in several decisions of
this Court, including in Sterling Computers Ltd. v. M & N
Publications Ltd (1993) 1 SCC 445, Tata Cellular v. Union of
India (1994) 6 SCC 651, Air India Ltd. v. Cochin International
Airport Ltd. (2000) 2 SCC 617, B.S.N. Joshi & Sons Ltd. v. Nair
Coal Services Ltd. (2006) 11 SCC 548 and Jagdish Mandal v.
State of Orissa (2007) 14 SCC 517" 31.
11. Also the decision of the Hon'ble Supreme Court in the case of
Kranti Associates Pvt. Ltd. and another v/s Masood Ahmed Khan and others
cited in (2010) 9 SCC 496 highlights this point. The Hon'ble Supreme Court
in paragraph 15 opined that the face of an order passed by a quasi judicial
authority or even an administrative authority affecting the rights of parties,
must speak. It must not be like the inscrutable face of a sphinx. In paragraph
47 the Honb'le Supreme Court summarized its discussion. The relevant sub-
paragraphs of the said summary are quoted as under:-
"47. Summarising the above discussion, this Court holds:
(f) Reasons have virtually become as indispensable a component
of a decisionmaking process as observing principles of natural
justice by judicial, quasi-judicial and even by administrative
bodies.
(h) The ongoing judicial trend in all countries committed to rule of
law and constitutional governance is in favour of reasoned
decisions based on relevant facts. This is virtually the lifeblood of
judicial decision-making justifying the principle that reason is the
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
6 WP-3878-2012
soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as
different as the judges and authorities who deliver them. All these
decisions serve one common purpose which is to demonstrate by
reason that the relevant factors have been objectively considered.
This is important for sustaining the litigants' faith in the justice
delivery system.
(n) Since the requirement to record reasons emanates from the
broad doctrine of fairness in decision-making, the said
requirement is now virtually a component of human rights and was
considered part of Stasbourg Jurisprudence. See Ruiz torija v.
Spain (1994) 19 EHRR 553, at 562 para 29 and Anya v. University
of Oxford 2001 EWCA Civ 405 (CA), wherein the Court referred
to Article 6 of the European Convention of Human Rights which
requires,"adequate and intelligent reasons must be given for
judicial decisions".
12. As disciplinary authority has issued a non-speaking and
unreasoned order, therefore, absence of reason in the punishment order
cannot be compensated by disclosure of reason in the appellate order,
therefore, the argument of counsel for respondent is not sustainable that the
appellate order is reasoned and speaking order. The Hon'ble Supreme Court
in the case Oryx Fisheries Pvt.Ltd vs Union Of India & Ors; (2010) 13 SCC
427 has held as under:-
"41. In M/s Kranti Associates (supra), this Court after
considering various judgments formulated certain
principles in para 51 of the judgment which are set out
below
a. In India the judicial trend has always been to record
reasons, even in administrative decisions, if such
decisions affect anyone prejudicially.
b. A quasi-judicial authority must record reasons in
support of its conclusions.
c. Insistence on recording of reasons is meant to serve
the wider principle of justice that justice must not only
be done it must also appear to be done as well.
d. Recording of reasons also operates as a valid restraint
on any possible arbitrary exercise of judicial and quasi-
judicial or even administrative power.
e. Reasons reassure that discretion has been exercised
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
7 WP-3878-2012
by the decision maker on relevant grounds and by
disregarding extraneous considerations.
f. Reasons have virtually become as indispensable a
component of a decision making process as observing
principles of natural justice by judicial, quasi-judicial
and even by administrative bodies.
g. Reasons facilitate the process of judicial review by
superior Courts.
h. The ongoing judicial trend in all countries committed
to rule of law and constitutional governance is in favour
of reasoned decisions based on relevant facts. This is
virtually the life blood of judicial decision making
justifying the principle that reason is the soul of justice.
i. Judicial or even quasi-judicial opinions these days can
be as different as the judges and authorities who deliver
them. All these decisions serve one common purpose
which is to demonstrate by reason that the relevant
factors have been objectively considered. This is
important for sustaining the litigants' faith in the justice
delivery system.
j. Insistence on reason is a requirement for both judicial
accountability and transparency.
k. If a Judge or a quasi-judicial authority is not candid
enough about his/her decision making process then it is
impossible to know whether the person deciding is
faithful to the doctrine of precedent or to principles of
incrementalism.
l. Reasons in support of decisions must be cogent, clear
and succinct. A pretence of reasons or `rubber-stamp
reasons' is not to be equated with a valid decision
making process.
m. It cannot be doubted that transparency is the sine qua
non of restraint on abuse of judicial powers.
Transparency in decision making not only makes the
judges and decision makers less prone to errors but also
makes them subject to broader scrutiny. (See David
Shapiro in Defence of Judicial Candor (1987) 100
Harward Law Review 731-737).
n. Since the requirement to record reasons emanates
from the broad doctrine of fairness in decision making,
the said requirement is now virtually a component of
human rights and was considered part of Strasbourg
Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29
and Anya vs. University of Oxford, 2001 EWCA Civ
405, wherein the Court referred to Article 6 of
European Convention of Human Rights which requires,
"adequate and intelligent reasons must be given for
judicial decisions". o. In all common law jurisdictions
judgments play a vital role in setting up precedents for
the future. Therefore, for development of law,
requirement of giving reasons for the decision is of the
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
8 WP-3878-2012
essence and is virtually a part of "Due Process".
42. In the instant case the appellate order contains
reasons. However, absence of reasons in the original
order cannot be compensated by disclosure of reason in
the appellate order.
43. In Institute of Chartered Accountants of India v.
L.K. Ratna and others,(1986) 4 SCC 537, it has been
held:
"......after the blow suffered by the initial
decision, it is difficult to contemplate
complete restitution through an appellate
decision. Such a case is unlike an action for
money or recovery of property, where the
execution of the trial decree may be stayed
pending appeal, or a successful appeal may
result in refund of the money or restitution of
the property, with appropriate compensation
by way of interest or mesne profits for the
period of deprivation. And, therefore, it
seems to us, there is manifest need to ensure
that there is no breach of fundamental
procedure in the original proceeding, and to
avoid treating an appeal as an overall
substitute for the original proceeding."
44. For the reasons aforesaid, this Court quashes the
show cause notice as also the order dated 19.03.2008
passed by the third respondent. In view of that, the
appellate order has no legs to stand and accordingly is
quashed."
13. The Enquiry Officer had admittedly cross-examined the
petitioner. The Supreme Court, in the case of Union of India and others vs.
Ram Lakhan Sharma (2018) 7 SCC 670, has held as under:-
"31. A Division Bench of the Madhya Pradesh High Court
speaking through Justice R.V. Raveendran, CJ (as he then was)
had occasion to consider the question of vitiation of the inquiry
when the Inquiry Officer starts himself acting as prosecutor in
Union of India and ors. vs. Mohd. Naseem Siddiqui, ILR (2004)
MP 821. In the above case the Court considered Rule 9(9) (c) of
the Railway Servants (Discipline & Appeal) Rules, 1968. The
Division Bench while elaborating fundamental principles of
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
9 WP-3878-2012
natural justice enumerated the seven well recognised facets in
paragraph 7 of the judgment which is to the following effect: "7.
One of the fundamental principles of natural justice is that no man
shall be a judge in his own cause. This principle consists of seven
well recognised facets:
(i) The adjudicator shall be impartial and free from bias,
(ii) The adjudicator shall not be the prosecutor,
(iii) The complainant shall not be an adjudicator,
(iv) A witness cannot be the Adjudicator,
(v) The Adjudicator must not import his personal knowledge of
the facts of the case while inquiring into charges,
(vi) The Adjudicator shall not decide on the dictates of his
Superiors or others,
(vii) The Adjudicator shall decide the issue with reference to
material on record and not reference to extraneous material or on
extraneous considerations. If any one of these fundamental rules is
breached, the inquiry will be vitiated."
32. The Division Bench further held that where the Inquiry Officer
acts as Presenting Officer, bias can be presumed. In paragraph 9 is
as follows:
"9. A domestic inquiry must be held by an unbiased person who is
unconnected with the incident so that he can be impartial and
objective in deciding the subject matters of inquiry. He should
have an open mind till the inquiry is completed and should neither
act with bias nor give an impression of bias. Where the Inquiry
Officer acts as the Presenting Officer, bias can be presumed. At all
events, it clearly gives an impression of bias. An Inquiry Officer is
in position of a Judge or Adjudicator. The Presenting Officer is in
the position of a Prosecutor. If the Inquiry Officer acts as a
Presenting Officer, then it would amount to Judge acting as the
prosecutor. When the Inquiry Officer conducts the examination-
in- chief of the prosecution witnesses and leads them through the
facts so as to present the case of the disciplinary authority against
the employee or cross- examines the delinquent employee or his
witnesses to establish the case of the employer/disciplinary
authority evidently, the Inquiry Officer cannot be said to have an
open mind. The very fact that he presents the case of the employer
and supports the case of the employer is sufficient to hold that the
Inquiry Officer does not have an open mind."
33. The Division Bench after elaborately considering the issue
summarised the principles in paragraph 16 which is to the
following effect:
"16. We may summarise the principles thus:
(i) The Inquiry Officer, who is in the position of a Judge shall not
act as a Presenting Officer, who is in the position of a prosecutor.
(ii) It is not necessary for the Disciplinary Authority to appoint a
Presenting Officer in each and every inquiry. Non- appointment of
a Presenting Officer, by itself will not vitiate the inquiry.
(iii) The Inquiry Officer, with a view to arrive at the truth or to
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
10 WP-3878-2012
obtain clarifications, can put questions to the prosecution
witnesses as also the defence witnesses. In the absence of a
Presenting Officer, if the Inquiry Officer puts any questions to the
prosecution witnesses to elicit the facts, he should thereafter
permit the delinquent employee to crossexamine such witnesses
on those clarifications.
(iv) If the Inquiry Officer conducts a regular examination-in-chief
by leading the prosecution witnesses through the prosecution case,
or puts leading questions to the departmental witnesses pregnant
with answers, or cross-examines the defence witnesses or puts
suggestive questions to establish the prosecution case employee,
the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.
(v) As absence of a Presenting Officer by itself will not vitiate the
inquiry and it is recognised that the Inquiry Officer can put
questions to any or all witnesses to elicit the truth, the question
whether an Inquiry Officer acted as a Presenting Officer, will have
to be decided with reference to the manner in which the evidence
is let in and recorded in the inquiry.
Whether an Inquiry Officer has merely acted only as an Inquiry
Officer or has also acted as a Presenting Officer depends on the
facts of each case. To avoid any allegations of bias and running
the risk of inquiry being declared as illegal and vitiated, the
present trend appears to be to invariably appoint Presenting
Officers, except in simple cases. Be that as it may."
34. We fully endorse the principles as enumerated above,
however, the principles have to be carefully applied in facts
situation of a particular case................................" xxxxx
36. Thus, the question as to whether Inquiry Officer who is
supposed to act independently in an inquiry has acted as
prosecutor or not is a question of fact which has to be decided on
the facts and proceedings of particular case. In the present case we
have noticed that the High Court had summoned the entire inquiry
proceedings and after perusing the proceedings the High Court
came to the conclusion that Inquiry Officer himself led the
examination in chief of the prosecution witness by putting
questions. The High Court further held that the Inquiry Officer
acted himself as prosecutor and Judge in the said disciplinary
enquiry. The above conclusion of the High Court has already been
noticed from paragraphs 9 and 10 of the judgment of the High
court giving rise to Civil Appeal No.2608 of 2012.
37. The High Court having come to the conclusion that Inquiry
Officer has acted as prosecutor also, the capacity of independent
adjudicator was lost which adversely affecting his independent
role of adjudicator. In the circumstances, the principle of bias shall
come into play and the High Court was right in setting aside the
dismissal orders by giving liberty to the appellants to proceed with
inquiry afresh. We make it clear that our observations as made
above are in the facts of the present cases."
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
11 WP-3878-2012
14. On perusal of the aforesaid decision, it would clearly reveal that an
Enquiry Officer cannot play the role of a prosecutor and cross-examine the
delinquent employee, whereas, in the present case, as already observed, the
petitioner has been elaborately cross-examined by the Enquiry officer, and in
such circumstances, the petition deserves to be allowed on this ground only.
15. From the perusal of the aforesaid, it is apparently clear that the
enquiry officer himself has acted as a prosecutor in the case and has cross-
examined the witnesses which is not permissible in law. The aforesaid aspect
was considered in the case of Ram Prakash Singh vs. State of M.P. and
others, W.P.No.414 of 2002 decided on 16.11.2009 wherein the case of
Union of India vs K.D. Pandey reported in (2002) 10 SCC 471 was taken
note of and it has been held as under :
"In the present case, no Presenting Officer was appointed by the
disciplinary authority and the subsequent enquiry officer himself
has acted as Presenting Officer, meaning thereby, as a prosecutor.
The enquiry officer has handed over the written questionnaire to
the witnesses and on the basis of written questionnaire, the
enquiry has been concluded in the matter. ....
8. The Apex Court in the case of Union of India vs K.D. Pandey
and another (2002) 10 SCC 471 in paragraph 5 has held as under -
5. Learned counsel for the appellant contended that in this case the
Board had examined the material on record and come to the
conclusion that four of the six charges could be proved on the
available material, which had not been properly examined in the
earlier inquiry. In fact from the order made by the Railway Board
as well as from that part of the file where the inquiry report made
earlier is discussed, it is clear that specific findings have been
given in respect of each of the charges after discussing the matter
and, if that is so, we fail to understand as to how there could have
been a remit to the inquiry authority for further inquiry. Indeed
this resulted in second inquiry and not in a further inquiry on the
same set of charges and the material on record. If this process is
allowed the inquiries can go on perpetually until the view of the
inquiry authority is in accord with that of the disciplinary authority
and it would be abuse of the process of law. In that view of the
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
12 WP-3878-2012
matter we think that the order made by the High Court affirming
the order of the Tribunal is just and proper and, therefore, we
decline to interfere with the same. The appeal is dismissed
accordingly.
11. Keeping in view the aforesaid judgments, as it is evident in the
present case that the enquiry officer has acted as a prosecutor in
the subsequent enquiry conducted in the matter and therefore, the
same deserves to be and is hereby quashed. Resultantly, the writ
petition is allowed with the following directions :
(a) The impugned order of compulsory retirement dated
03.11.2001 and the order passed by the appellate authority dated
28.02.2002 are hereby quashed.
(b) The respondents are directed to reinstate the petitioner back in
service forthwith. The respondents are directed to grant the
consequential benefits to the petitioner i.e. annual increments,
50% back wages and subsequent promotions, in case any junior
has been considered and promoted to the next higher post.
(c) The aforesaid exercise of granting back wages, notional
fixation of salary, increments, consequential promotion, if any,
shall be concluded within a period of six months from the date of
receipt of a certified copy of this order."
16. The case of the petitioner herein is that the Presenting Officer was
not appointed and Enquiry Officer has acted as Presenting Officer as he
conducted cross-examination of petitioner as well as witnesses which is in
violation of provisions of clause (c) of sub-rule (5) of Rule 14 of the M.P.
Civil Services (Classification, Control and Appeal) Rules, 1966. The said
issue has already been decided in the case of Ram Prakash Gaya Prashad v.
State of M.P., 2008 (4) MPLJ 35, K.C. Bhargava v. State of M.P., 2012 (4)
MPLJ 244 and judgment dated 19.6.2007 passed by this Court in W.P.
No.5449/2006 (Abde Kasim Sheikh v. State of M.P.).
17. The similar is the situation in the present case. Therefore, the
impugned order is unsustainable as the enquiry officer has acted as a
prosecutor and cross-examined the prosecution witnesses.
18. The case of the petitioner is squarely covered by the judgment
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
13 WP-3878-2012
passed in the aforesaid cases. The counsel appearing for the
respondents/State could not dispute the aforesaid fact and fairly submits that
the enquiry officer himself has acted as a prosecutor in the matter and
conducted the cross-examination of the witness which is not permissible.
19. It is settled position that as per Police Regulation 228,
Superintendent of Police alone is competent to issue charge-sheet. This
position has already been held in the judgments i.e. Arun Prakash Yadav
(supra), R.K. Richhariya Vs. The State of Madhya Pradesh and others
(W.P.No.1509/2012 decided on 19.04.2023 at Principal Seat) and The State
of Madhya Pradesh Vs. Mahesh Kumar Bhargave (W.A.No.704/2014
decided on 14.09.2016 at Indore Bench).
20. The Division Bench of this Court at Indore in the case of Mahesh
Kumar Bhargave (supra) has held as under:
"6. That, the appeal has been filed on the ground that under
Regulation 228 of the 'Regulation' in all cases of removal,
compulsory retirement, reduction in rank and withdrawal of
increment, the Inspector General of Police also competent to issue
the charges.
Regulation 228 and 229 of the said Rules are reproduced as under:
228. D.E. - When and how held.- In every case of
removal, compulsory retirement from service, reduction
in rank, grade or pay or withholding of increment for a
period in excess of one year a formal proceedings must
be recorded by the Superintendent in the prescribed
form, - setting forth].
(a) the charge;
(b) the evidence on which the charge is based'
(c) the defence of the accused;
(d) the statements of his witnesses (if any);
(e) the finding of the Superintendent, with the reasons
on which it is based;
(f) the Superintendent's final order or recommendation,
as the case may be;
Provided that it shall not be necessary to record a
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
14 WP-3878-2012
formal proceeding, if due to exigencies of serviced and
not by reason of any misconduct or fault on his part, a
police officer is transferred from a post carrying a
specialist pay in the special Armed Force, Motor
Transport or Radio Telegraphy sections to a post not
carrying such pay and reduction in his pay is caused by
reason of such transfer.
Note (1) If a written defence is tendered, it should
be accepted and attached to the record.
Note (2) Reasonable time should, however, be given to
the accused person to submit his written defence after
the charge sheet is handed over to him.
Note (3) The traveling allowance of the defence
witnesses shall be borne by the department. In order to
facilitate the production of defence witnesses, the
Inquiry Officer on the application of the accused should
issue a notice to the defense witnesses to present
themselves on the date so fixed. If the witnesses do not
turn up after such notice, it shall be the responsibility of
the accused to produce his own witnesses.
229. D.E. - Final orders in. - If the Superintendent is
empowered to pass the final order in the case, the
papers will be filed in his office, a copy of the order
being sent to be Deputy Inspector General with the
monthly punishment return. In other cases they will be
forwarded as follows:-
(a) Reduction in rank of an Assistant Sub-Inspector to
the Deputy Inspectors General through the District
Magistrate.
(b) All proposals for the dismissal, removal or
compulsory retirement of an officer of and above the
rank of Assistant Sub-Inspector should be forwarded to
the proper authority though the District Magistrate
except in cases where an officer is not serving in a
district.
(c) In the case of transfer of an officer of or above the
rank of Inspector, the Superintendent of Police should
forward the District Magistrate's suggestion to the
Deputy Inspector General of Police.
7. It is further submitted that is Inspector General of Police is the
appointing authority of Inspector as per the Madhya Pradesh
Police Recruitment Rules, 1997, therefore, he is competent to
issue the charge-sheet.
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
15 WP-3878-2012
8. Shri Mangal, learned Government Advocate for the appellant
submits that the judgment passed in case of Arun Prakash Yadav
(Supra) requires reconsideration as the scope of Regulation 229
has not been considered by the Division Bench where the
Superintendent is empowered to pass the final order in certain
cases and in other cases file would be sent to the Deputy Inspector
General of Police, therefore, the Regulation 228 and 229 has to be
read together and according to which, the Superintendent of Police
alone is not competent to issue the charge-sheet, but Deputy
Inspector General of Police can also issue a charge-sheet to the
Inspector. In support of his contention, he has placed reliance over
the judgment of this Court in case of State of M.P. Vs. Virendra
Singh Gurjar, reported in 2015, SCC Online MP 5850 , in case of
Shyambaboo Vs. State of M.P. , reported in 1987(2) MPWN 43
and in case of State of M.P. Vs. Shivaji Rao, reported in 1990(2),
MPWN 172.
9. Per contra, Shri S.K. Gupta, learned counsel for the respondent
submits that however, the State Government is challenging the
order passed in Arun Prakash Yadav (Supra) by way of SLP 820-
821/15 but vide order dated 01.12.2015 the SLP was dismissed
and thereafter the review petition has also been dismissed,
therefore, the order passed in case of Arun Prakash Yadav (Supra)
has attained finality and is not require to be reconsidered. He has
further submitted that after passing the order in the case of Arun
Prakash Yadav (Supra) , various writ appeals were filed by the
State of Madhya Pradesh has been dismissed. One of the copy of
order was passed in W.A.No.553/2013 dated 30.11.2015 is
produced at the time of argument, therefore, no case is made out to
interfere with the order of Single Judge in the present writ appeal.
10. In rejoinder, Shri Mangal submits that the SLP was dismissed
in default because of non-compliance of the Court order and not
on merits, therefore, it does not construe a binding precedent. In
support of his plea, he has placed reliance over the judgment
passed in case of Bhakra Beas Management Board Vs. Krishan
Kumar Vij and Anr., reported in (2010) 8 SCC 701, therefore, this
Court can reconsider the issue decided in the case of Arun Prakash
Yadav (Supra).
11. We have heard learned counsel for the parties.
12. Though the writ Court has allowed the writ petition placing
reliance over the judgment passed in Naresh Kumar Suryavanshi
(Supra) and set-aside the chargesheet, but in case of Arun Prakash
Yadav (Supra), the Division Bench on a reference has specifically
held that the Superintendent of Police alone has been mentioned
as authority to frame and issue the charge-sheet in respect of
penalty or penalties. Para 19, 20, 21, 34 and 36 of the judgment
passed in the case of Arun Prakash Yadav (Supra) is reproduced
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
16 WP-3878-2012
as below:
19. It would be appropriate at this stage to decipher the
real intent and purport of the Regulation 228 for finding
out as to whether any other authority superior or
inferior in rank to SP can also exercise the power of
issuance of charge-sheet against an Officer subordinate
in rank to SP. For convenience, the relevant extract of
the Regulation 228 is reproduced below:
228. D.E. - When and how held.- In every case of
removal, compulsory retirement from service, reduction
in rank, grade or pay or withholding of increment for a
period in excess of one year a formal proceedings must
be recorded by the Superintendent in the prescribed
form, - setting forth].
(a) the charge;
(b) the evidence on which the charge is based'
(c) the defence of the accused;
(d) the statements of his witnesses (if any);
(e) the finding of the Superintendent, with the reasons
on which it is based;
(f) the Superintendent's final order or recommendation,
as the case may be;
20. A bare reading of Regulation 228 indicates that
Superintendent alone has been mentioned as the
authority to frame and issue a charge-sheet in respect of
major penalty or penalties which have the effect of
major penalties. The term Superintendent means the
Superintendent of Police, which is evident from
Regulation 32 which describes the SP as the head of
Police Force of his District. The Police Regulations do
not prescribe the competence of any authority to issue a
charge-sheet in any other provisions except Regulation
228, which solely empowers the SP. This power of
issuance of charge-sheet is bestowed upon the SP in
regard to all persons holding the ranks subordinate to
that of the SP. By necessary implication, the provisions
of Regulation 228 exclude all authorities, superior or
inferior to the SP to issue a chargesheet to any Police
personnel holding the rank subordinate to that of SP. It
can, thus, be safely held that for an Inspector of Police,
which in rank is subordinate to SP, the sole competent
authority to issue charge-sheet is the SP under the
Police Regulations, which exclusively govern the field
as held supra.
21. From the above discussion, it is crystal clear that no
other authority except SP is empowered under the
Police Regulation to institute disciplinary
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
17 WP-3878-2012
proceedings/issue chargesheet to an Inspector of Police.
34. From the above conspectus of facts and law, it is
evident that neither in the case of N.K. Pandey (supra)
nor in the case of Dalchand Ahirwar (supra) the
question of applicability or non-applicability of the
Rules of 1966 was raised or considered by this Court
for deciding the question of competence of the authority
to initiate disciplinary proceedings against an Inspector
of Police. Moreso, this Court in both these contrary
decisions was not posed with, and, therefore, did not
consider, the question as to whether mere declaration of
the post of Inspector as Gazetted can induct by
implication the post of Inspector into the Gazetted
service constituted under the Gazetted Rules, without
the said Rules being amended.
36. This bench, thus, answers the reframed question in
the following manner:-
(i) An Inspector of Police while assailing the
competence of authority to issue major penalty/charge-
sheet against him cannot avail induction into the
gazetted cadre constituted under the Gazetted Rules of
2000 merely because of being declared as Gazetted and
being upgraded in the scale of pay of Rs.6500-10,500/-,
unless the Gazetted Rules of 2000 are amended
suitably.
(ii) For the purpose of deciding the competence of an
authority to institute disciplinary proceedings/issuance
of chargesheet against an Inspector of Police, the M.P.
Police Regulations alone would apply to the exclusion
of M.P. Civil Service (Classification, Control and
Appeal) Rules, 1966.
(iii) As per Regulation 228 of Police Regulations, the
Superintendent of Police alone is the competent
authority to initiate disciplinary proceedings/issue
charge-sheet for major penalties, against an Inspector of
Police; and
(iv) Neither the decision rendered in the case of
N.K.Pandey Vs. State of M.P., ILR (2011) MP 2168 nor
the decision in the case of Dalchand Ahirwar Vs. State
of M.P., ILR (2012) M.P. 902 lay down the correct law
for deciding the question of competency of authority to
initiate disciplinary proceedings/issue charge-sheet to
an Inspector of Police.
13. In the present case, the impugned charge-sheet was issued by
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
18 WP-3878-2012
the DIG and the petitioner was holding the post of Inspector,
therefore, the ratio laid down by the Division Bench in case of
Arun Prakash Yadav (Supra) is fully applicable in the present
case.
14. So far as the contention of the learned counsel for the
appellant is concerned about the applicability of Regulation 229,
the Regulation 229 deals with the final orders after completion of
the departmental enquiry. Under Regulation 229 if the
Superintendent of Police is empowered to pass the final order in
case of paper will be filed in his office, a copy of the order be sent
to the DIG with the montly punishment return, therefore, the
power to exercise the authority at the time of final order may be
exercised by DIG but that stage would come at the time of passing
of final order. But in the present case, the petitioner has
challenged the charge-sheet on an issue under Regulation 228 by
Superintendent of Police. Stage of issuance of charge-sheet is
provided under Regulation 228 of the 'Rules of 1964' , where the
Superintendent alone has been granted authority to issue the
charge-sheet and conduct the departmental enquiry. Thereafter,
under Sub-Regulation (f) of Regulation 228 , he is also competent
to pass the final order or give a recommendation, as the case may
be, therefore, in view of the above, since, the present case is at the
stage of issuance of charge-sheet, therefore, provision of
Regulation 228 will alone apply.
15. In view of the law laid down in the case of Arun Prakash
Yadav (Supra), the present case is examined independently within
the scope of Regulation 228. The writ Court has not committed
any error while quashing the charge-sheet, therefore, we do not
find any ground to interfere with the order of learned Single Judge
and do not find any ground to reconsider the judgment passed in
case of Arun Prakash Yadav (Supra).
16. The present appeal is dismissed, however, the liberty granted
by the writ Court to the competent authority to issue charge-sheet
is maintained."
21. In view of the above discussions and the facts and circumstances
of the case, I am left with no choice but to set aside impugned punishment
order dated 10.7.2010 (Annexure P/3) and appeal rejection order dated
15.10.2010 (Annexure P/2) and 14.3.2012 (Annexure P/1).
22. Consequently respondents are directed to give all consequential
benefits to petitioner within a period of three months from the date of receipt
NEUTRAL CITATION NO. 2026:MPHC-GWL:1217
19 WP-3878-2012
of certified copy of this order and liberty is granted to respondents to take
action against petitioner, in accordance with law.
23. With aforesaid observations and directions, preset Writ Petition is
hereby disposed of.
24. Pending interlocutory application, if any, is disposed of.
(ANAND SINGH BAHRAWAT)
JUDGE
Ahmad
