^—--- > In tlae n.P. St^fr^'Admin$s-brative •iTibupal : Jabalpur 0<A» !f@. L y 1991 AEELIOAB^ 0£~^FiSsSSb Sbarma S/0 Shri Sam Saran Sbarma, B/0 Village Bfeatapara, Bistriot- KAIPUS. vs, ,:1.0tate @f H«P. tte®ggiaSeore-bary, Ministray ®fBome Vallabli Iteavaa, BHOPMr 2< InspeGtT &®neral»fPelice Bhilai 2®ne,SBEDAI (H«P.)« HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (Sl N0.459/2005 APPLICANT Om Prakash Sharma RESPONDENTS Versus State of Madhya Pradesh and another ^ '- Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. FOR PRONOUNCMENT OF ORDER Sd/- Manindra Mohan Shrivastava Jude ^.-^ f" /f^\ APPLICANT HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.459/2005 Om Prakash Sharma RESPONDENTS Versus State of Madhya Pradesh and another Single Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. Present: - Shri Anup Majumdar, counsel for the petitioner. Shri Ajit Singh, Panel Lawyer for the State/resp^ondents. ORDER (Passed on this ^dayofMarch, 2010) By this petition, the petitioner has challenged the order dated 05-11-1990 (Annexure P-111) by which his appeal against the order of imposition of penalty dated 29-03-1990 has been dismissed. The petitioner has also challenged the order dated 27-05-1991 (Annexure P-IV) by which his mercy petition has also been rejected. (2) A departmental enquiry was instituted against the petitioner and other two constables namely Dhaniram and Onkarnath Tiwari, by issuing charge |WMINtiNNKKlk sheet on 19-10-1989. The petitioner submitted his reply to the charge sheet denying charges leveled against him. Allegation against the petitioner and other constables has been that on mere doubt Shri Sukhdeo Prasad, a freedom fighter was arrested and handcuffed. It was also alleged that Rs.11/- were illegally extracted from Dinesh Gupta. The case of the petitioner has been that the allegation against him is wholly improbable and it is only the Inspector in this case namely Shri S. S. Pariharwho could have handcuffed. (3) After appointment of enquiry officer, enquiry was conducted. Case of the petitioner is that the prosecution witnesses deposed in his favour and there was ^w /^. '^ % i..-.^^t^ ^l ^ v%y J^ ^^ ,y %-.y hN^r no adverse evidence on record proving the charges leveled against the petitioner. After conclusion, the Enquiry Officer submitted report dated 26-03-1990 (Annexure P-l) in which the petitioner and remaining three delinquent employee against whom the charges were leveled and enquiry conducted, were held guilty and charges proved against them. Acting upon the said enquiry report, the disciplinary authority vide order dated 29-03-1990 (Annexure P-11) imposed penalty of compulsory retirement on three constables including the petitioner whereas penalty of withholding of one increment for one year was imposed on Shri S. S. Parihar, Sub Inspector. Aggrieved by the said order, the petitioner preferred an appeal before the appellate authority-Deputy Inspector General of Police, Raipur Region, Raipur, which was dismissed vide order dated 05-11-1990 (Annexure P-lll). Thereafter, a mercy petition was filed before the Inspector General of Police, Bhilai Zone, Bhilai, which was also dismissed vide order dated 27-05-1991 (Annexure P-IV). Later on, the petitioner came to know that Constable Dhaniram and Onkarnath Tiwari have been reinstated. The petitioner, therefore, again submitted representation (Annexure P-V) before the respondent authority that those who have been reinstated were identically situated as the petitioner, and therefore he may also be reinstated in service. (4) Assailing the order of imposition of penalty and dismissal of appeal, it has been argued that though from evidence on record, it is clear that Shri S. S. Parihar, Sub Inspector, under whose order all action has been taken, has been imposed only a minor penalty of withholding of one increment for one year and two other identically situated delinquent employees namely Dhaniram & Onkarnath Tiwari, Constables have been reinstated, petitioner's case has not been considered in just and fair manner and he has been subjected to hostile discrimination imposing penalty of compulsory retirement confirmed by the ^^^< ha^> appellate authority. It has also been argued that respondent authorities have not appreciated the entire evidence available on record and arrived at conclusion in a mechanical manner based on the report of Enquiry Officer. It has been further argued that while holding the petitioner guilty and imposing penalty it has been ignored that in relation to alleged theft by Shri Sukhdeo Prasad, a challan was filed in the Court of Chief Judicial Magistrate. Further submission is that in any case, punishment of penalty of compulsory retirement is grossly disproportionate to the gravity of misconduct. (5) On the other hand, learned State counsel argued that the charges leveled against the petitioner were grievous in nature and after holding due and proper enquiry, on the basis of evidence available on record, the Enquiry Officer found the charges proved against the petitioner and other two delinquent employees and thereafter, the disciplinary authority imposed penalty of compulsory retirement. It has also been submitted that appeal of the petitioner has also been rejected after due application of mind and concumng with the decision of the disciplinary authority. The appellate authority having concurred with the decision of the disciplinary authority, there is no need to give detail reasons for rejecting the appeal. It has also been argued that in so far as the petitioner's claim for parity with two other delinquent employees is concerned, who were charged and punished along with the petitioner, were reinstated in service and given minor punishment, after going through their service record, the petitioner could not claim parity as records of the petitioner is not as good as the other two delinquent employees namely Dhaniram and Onkarnath Tiwari. It has been further argued that looking to the nature of gravity of misconduct which has been found to be proved, penalty of compulsory retirement cannot be termed as grossly disproportionate so as to shock the conscience ofthe Court. /;ss\ (6) Taking into consideration the contention of learned counsel for the respective parties, 1 have perused the record. A perusal of the order passed by the appellate authority on 16-11-1990 (Annexure P-lll), it is found that the only consideration made by the appellate authority is as below:- srtosfrpr ^KT w^ spft^r, f^rpN w^ ^ wf^r ^FR^T sriT'T^'i, ^cTT griT'r^r, ^TT ^teffr HSIT ^^RT ^sftgT^ ^ fff^to ^r -^i STSPR tor i srtasfrw ^ f^^ y^if^id ^? 7T^ STRM 3iNd ^^ t toc^ ^d^<1^4 gf^RT STsftSf^ EfKT f^ ^ ^g ^ f^ft '>ft T^R ^ cCT ^f tof ^JTT W^fT | 3T^<4^|q\iM ^ ^T f^c(^ ^ r^r ^ f^ 3^T STSft^T^ S^KT f^TT 7Pff ?u^ ^STT ^RT t sft^ 3ftasfrpT ^KT TR^T 3T^ ^l ^HT ^ ^RT g^T ^ t f^Rf^ f^ 7T^ ^g ~^ -5^ f^TT W^, ^ 3Tto§ff7TTTI c(Tf Wt 1?c[7R ^cTFT f^r ^ | 3T^cT 3Ttoaff7TTTT ^KT TT^T 3P:ftcT c^t f^R^f f^T ^n?TT f 3fk ^f^RT SI^ST^ ^KT f^ ^ ^g ^r ^sn^r ^T ynnr 11'; A perusal of the order passed on mercy petition on 27-05-1991 shows that the same has also been dismissed recording that from perusal of records, it is found that the enquiry has been conducted in accordance with the rules. Taking Sukhdeo Prasad, Freedom Fighter, resident of Bagbahara to Nayapara Chowki on the suspicion of theft without any basis handcuffing and insulting and illegally expecting money from Dinesh Gupta, such ignominious conduct have been found proved which has tarnished the image of police force in the esteem of public. (7) In the case of Soniram Dhruv Versus State of Madhya Pradesh and others, (W.P.(S.)No.1367 of 2005) this Court vide order dated 05-02-2010, dealing with the identical situation where totally non-speaking order was passed by the appellateauthority, it has been held that:- 10. Clause 213 of the Chhattisgarh Police Regulations provides that the provisions contained in C.G. Civil Services (Classification, Control and Appeal) Rules 1966 shall regulate penalty and appeal in respect '^. .,^':t^^^, ^ '^y^j ././ ^K^ of police officers. It has been held by the High Court of Madhya Pradesh in the matter of Krishna Narayan Shivpvare DixitVs. State of M.P and others. 1985. M.P.L.J., 343 that regulations 213 does not exclude the operation of M.P. Civil Service (Classification, Control & Appeal) Rules, 1966. As no specific provisions had been made in Police Regulations to prescribe the manner in which the appeal against the order of punishment shall be decided by the Appellate Authority, the provisions contained in C.G. Civil Services (Classification, Control & Appeal) Rules, 1966 prescribing mode and manner of exercise of appellate power by the Appellate Authority are applicable. 11. It is well settled that the Appellate Authority while considering the appeal acts in quasi-judicial capacity. Relevant provision contained in C.G. Civil Services (Classification, Control & Appeal) Rules, 1966 for consideration of an appeal are as under:" 27. Consideration ofAppeal:- "(1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of rule 9 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. (2) In the case of an appeal against an order imposing any of the penalties specified in rule 10 or enhancing any penalty imposed under the said rule, the appellate authority shall consider:- (a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failureofjustice; (b) whether the findings of the disciplinary authority are warranted by the evidence on the records; and (c) whether the penalty or enhanced penalty imposed is adequate, inadequate or severe, and pass orders- r-"- ^! (i) confirming, enhancing, reducing or setting aside the penalty; or (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances ofthe case." 12. Appellate Authority is therefore obliged under the law to exercise its statutory power of appeal in accordance with the provisions contained in Rules 27 of the Rules of 1966. Consequently, while exercising its appellate jurisdiction, Appellate Authority is duty bound to exercise the same in the manner prescribed in Rule 27 (2) of the Rules of 1966. Rules mandatorily require the Appellate Authority to consider whether the procedure laid down in the Rules has been complied with and if not whether such non-compliance resulted in violation of any provision of the Constitution of India or.in the failure of justice; whether findings of the disciplinary authority are warranted by the evidence on record and whether the penalty imposed is adequate, inadequate or severe. The Appellate Authority is therefore under statutory obligations to consider the appeal in the manner as laid down in the Rules as aforesaid and then may confirm enhance, reduce or set aside the penalty or remit the case to the Authority which imposed or enhanced the penalty or to any other Authority with such direction as deem fit in the circumstances of the case. The scheme of Rule 27 therefore clearly implies that the Appellate Authority has to pass speaking order indicating that points raised by the petitioner has been considered. In case the objection ofthe petitioner is not acceptable he . has to give the reasons for not accepting the same. It is thus the duty of Authority to apply its mind while deciding the appeal and he is obliged to give clear finding on the charges of the penalty. The powers of Authority being quasi-judicial in nature are required to be performed in all seriousness with a view to do justice with the appellant. 13. Though it is now well settled proposition of law that an Appellate Authority or Revisional Authority is not required to give detail reasons while agreeing with and confirming order passed by the Disciplinary Authority, as held in the cases of Tara Chand Khatri Vs. •^ Municipal Corporation of Delhi and others, 1977 (1) SCC 472: Divisional Forest Officer, Kothaaudem and others Vs. Madhusudhan Rao. 2008 (3) SCC 469, but if in the scheme of the statutory rules governing terms and conditions of service such a duty is cast on Appellate Authority to give reasons even in the case of an order of affirmation, the Appellate Authority is obliged to give reasons by applying its mind while considering the appeal in the manner prescribed under the Rules. 14. In the case of Ram Chander Vs. Union of India and others. 1986 (3) SCC 103 taking into consideration the Rule 22 (2) of the Railway Servants (Discipline and Appeal) Rules, 1968, which is quite similarto the rules applicable in the present case it was held as under:- "4. The duty to give reasons is an incident of the judicial process. So, in R.P. Bhatt v. Union of India (1986 (2)SCC 651), this Court, in somewhat similar circumstances, interpreting R.27(2) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 which provision is in pari materia, with R.22(2) of the Railway Servants (Discipline & Appeal) Rules, 1968, observed : "Itis clearupon theterms of R.27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the rules has been complied with; and if not, whether such non compliance has resulted in violation of any of the provisions of the Constitution of India or in the failure of justice ;(2) whether the findings of the disciplinary authority are warranted by the evidence on record ; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or remit back the case to the authority which imposed the same. It was held that the word 'consider' in Rule.27 (2) of the Rules implied 'due application of mind'. The Court emphasized that the Appellate Authority discharging quasi- judicial functions in accordance with natural justice must .?.^AJ "^^ s%^^ ^ give reasons for its decisions. There was in that case, as here, no indication in the impugned order that the Director- General,Border Road Organization, New Delhi was satisfied as to the aforesaid requirements. The Court observed that he had not recorded any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. In the present case, the impugned order of the Railway Board is in these terms : "(1) In terms of Rule 22(2) of the Railways Servants (Disciptine &Appeal) Rules, 1968, the Railway Board have carefullyconsideredyour appeal against the orders of the General Manager, Northern Railway, New Delhi imposing on you the penalty of removal from service and have obsen/ed as under: (a) by the evidence on record, the findings of the disciplinary authority are warranted ; and (b) the penalty of removat from service imposed on you is merited. (2) The Railway Board have therefore rejected the appeal preferred by you." 5. To say the least, this is just a mechanical reproduction of the phraseology of R.22(2) of the Railway Servants Rules without any attempt on the part of the Railway Board either to marshall the evidence on record with a view to decide whether the findings arrived at by the disciplinary authority could be sustained or not. There is also no indication that the Railway Board applied its mind as to whether the act of misconduct with which the appellant was charged together with the attendant circumstances and the past record of the appellant were such that he should have been visited with the extreme penalty of removal from service for a single tapse in a span of 24 years of service. Dismissal or removal from service is a matter of grave concern to a civil servant who after such a long period of service, may not deserve such a harsh ^•''^^. i^ .^•^ •'y •""^^' A punishment. There being non-compliance with the requirements of R.22(2) of the Railway Servants Rules, the impugned order passed by the Railway Board is liable to be set aside." In the same judgment, the Supreme Court, pointing out distinction based on scheme of statutory rules relating to consideration of an appeal explained as below: "8. So also in Tara Chand Khatri v. MunicipalCorporation ofDelhi &0rs.. [1977]2 S.C.R. 198 this Court observed that there was a vital difference between an order of reversal by the appellate authority and an order of affirmance and the omission to give reasons for the decision may not by itself be a sufficient ground for passing such order, relying on the test laid down by Subba Rao, J. in Madhya Pradesh Industries Ltd.. v. Union of India [1966] 1 S.C.R. 466. "Ordinarily, the appellate or revisional authority shatl give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the Appellate Tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons." 9. These authorities proceed upon the principle that in the absence of a requirement in the statute or the rules, there is no duty cast on an appellate authority to give reasons where the order is one of affirmance. Here, R. 22(2) of the Railway Servants Rules in express terms requires the Railway Board to record its findings on the three aspects stated therein. Similar are the requirements under R. 27(2) of the Central Civil Services (CIassification, Control & Appeal) Rules, 1965. R. 22(2) provides that in the case of an appeal against an order imposing any of the penalties specified in R. 6 or enhancing any penalty imposed under the said rule, the appellate authority shall 'consider' as to the matters indicated therein. The word 'consider' has different shades of meaning and 10 ^ must in R.22(2), in the context in which it appears, mean an objective consideration by the Railway Board after due application of mind which implies the giving of reasons for its decision. 1»»IN«^. 15. Even in a case where there is no duty caste on Appellate Authority to give reasons in case of order of affirmation, Supreme Court held in the case of Divisional Forest Officer, Kothaaudem and others (supra). "20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lowerforum." 16. Recently in the case of Chairman, Disciplinary Authoritv, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshnev and others, 2009 (4) SCC 240, Supreme Court has held as under: "5. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover's case (supra) has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate 1 ^^ 11 authority has applied its mind while affirming the order of the disciplinary authority. 6. The view we are taking was also taken by thisCourt in Divisional Forest Officer vs. Madhusudan Rao, JT 2008 (2)SC 253 (vide SCC para-20: JT para-19), and in Madhya Pradesh Industries Ltd. vs. Union of India, AIR 1966 SC 671, siemens Engineering & Manufacturing Co. of India Ltd. vs. Union of India, AIR 1976 SC 1785 (AIR para 6), etc. 7. In the present case, since the appellate authority's order does not contain any reasons, it does not show any application of mind. 8. The purpose of disdosure of reasons, as held by a Constitution Bench of this Court in the case of S.N.Mukherjee vs. Union of India reported in (1990) 4 SCC 594 :1990 SC (Cri.)669, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation. 9. No doubt, in S.N.Mukherjee's case (supra), it has been observed ("SCC p 613, para 36)) that: 36 "..The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge." The above observation, in our opinion, really means that the order of affirmance need not contain an elaborate reasoning as contained in the order of the original authority, but it cannot be understood to mean that even brief 1i^i-^'^'. %-. "^r^ ^^^S.S^" 12 reasons need not be given in an order of affirmance. To take a contrary view would mean that appellate authorities can simply dismiss appeals by one line orders stating that they agree with the view of the lower authority. 10. For the same reason, the decision of this Court in State of Madras vs. Srinivasan, AIR 1966 SC 1827 (vide AIR para 15)) has also to be understood as explained by us above." (8) If the orders, passed by the Appellate Authority and other Authorities are scrutinized by applying aforesaid principle of law laid down keeping in view statutory requirement as to the manner of consideration of an appeal, it leads to inevitable conclusion that the order passed by the Appellate Authority does not contain any reason whatsoever and is a mechanical affirmation without considering the appeal according to the statutory service rules. Therefore, the orders passed by the Appellate Authority and other Higher Authorities affirming the order passed in appeal are unsustainable in the eye of law and liable to be set aside. (9) In view of the above finding, 1 do not propose to go into other aspects of the matter relating to validity of the order of punishment recorded by the Disciplinary Authority on the ground raised by the petitioner in the petition as argued by learned counsel for the petitioner. (10) Relying upon the order of Supreme Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney (supra) this petition is partly allowed and the impugned orders dated 05-11-1990 (Annexure P-lll), dated 27-05-1991 (Annexure P-IV) are set aside. The matter is remanded to the Appellate 13 '^il^s^^ jn ^.,. ^y ^••sss-sy' Authority to decide the appeal filed by the petitioner afresh in accordance with law. Taking into consideration the fact that the order of punishment was imposed way back on 29-03-1990, it is further directed that the appeal shall be decided by the Authority as expeditiously as possible not later than 4 months from the date of receipt of copy of this order. No order as to costs. Sd/- Manindra Mohan Shrivastava Jude {