<IN Siiiaasii /j-.F-R- ff>/-<SP- HIGH COURT OF JUDICATURE CHHAniSGARH : BILASPUR DIVISIONBENCH CORAM HON'BLE SHRI S.R. NAYAK, CJ. HON'BLE SHR1 D.R. DESHMUKH, J. Writ Petition No.4487 OF 2000 PETITIONER RESPONDENTS 1. 2. 3. Anand Ram Tandan aged 34 years, S/o Dnyalee ram, Constable No. 685/1193, Pollce Line, Durg. Vereus The State Govt. of C.G. Through The Secretary, Home Department, DKS Bhawan, Raipur Inspector General of Police, Raipur (M.P.) Distt. Superintendent of Police, Durg. Present Shri Ajay Shrhrastava, leamed counsel for the peUtioner. Shri Utkareh Verma, teamed Dy. G.A. forfte State. ORAL ORDER (Passed on 01" August, 2006) Thefollowing oral order ofthe Court was passed by S.R.Nayak.CJ. This writ petition arises out of the disciplinary proceedings initiated against the petitioner by the Superintendent of Police, Durg, district Durg, the 3 respondent herein, under the provisions of M.P. Police Regulations (for short "the Regulations"). The petitioner, at the relevant point of time, was serving as Police Constabte in the Polic? Department of the State. While serving, the petttioner was served vrith a charge memo and the charge framed againstthe pefiUoner readsftus: "RtiiRdi 1iiR«T <n*t<n uRicii xi^ Pi'ti'di Rfdc)<il ^ ^ti^r ?t^ ^? i?^ ai^ iifegr ?TfRr V^ ^pt Jf^ ^II'P'S 'ceiqx *t&<iu^!ii RiRd ^W 311^<*'l ^RPT 1965 ^ ^fW 22 (l) ^' f^4 f^ifer yit{tii*)T w dTOi'y'1 wtt i" . <3 _ ^ (2) The 3 respondent not being satisfied with the explanation of the petitioner conducted a regular departmental enquiry as required under the Regulations and found him guitty of ttie charge. Accordingly, the 3rd respondent by his order dated 31-10-1999 imposed the penalty of compulsory retirement on the petitioner as a disciplinaiy measure. The petitioner feeling aggrieved by the said order of the 3 respondent preferred an administrative appeal to the Inspector General of Police, Raipur, the 2nd respondent herein. The 2 respondent having examined the charge, the facts and circumstances of the case and the evidence on record, came to the conclusion that the charge was defectively framed against the petHJoner-delinquent, that there is no legal evidence to substantiate the charge that ttie petitioner contracted the second marriage during the subsistence of the first mamage. In that view of the matter, the 2nd respondent by his order datsd 04-02-2000 set aside the order of fte 3rd respondent dated 31-10-1999. While doing so, the 2'"1 respondent, however, directed the 3 respondent-disciplinary authority to proceed against the petitioner departmentally by framing appropriate charge. The 2 respondent vide the same order also directed that the absence of the petitioner from the duty during the pendency of the disciplinary proceedings and after punishment was imposed on him till the appeal was decided be adjusted against <he leave at his credit. (3) It appears that as permitted by the 2 responderrt. the 3 respondent again framed a fresh charge on 22-03-2000 and the same was served on the petitioner. The new charge framed against the petitioner reads thus: "n' !I \. -3- "(1) Rdl(S<l qf^-T <f ft ffftaT v^ Pltii-dl Rtdd'si ^ ^tter ?t^ ^? 11ft 3pr if^cn ?TfRr v^ ^ war WRT WT ^ 05 (qra) 'wT ^ ^s^ IfcilU^iil 'C[f^RT ^1^!(M ^ +CT ^f^ 64 ^t ^q yfew (2). (a) ^f Wt T^ ^qr ?raT ^r dovi'y-i ^t wf^Er 3ii^i<"i y<iRrd ^^rr i" (4) In the meanwhile, the petih'oner feeling aggrieved by the order of the 211d respondent dated 04-02-2000 instituted Original Application No. 365 of 2000 befbre the Madhya Pradesh Administrative Tribunal, Raipur Bench (for short "the Tribunal") insofar as the 2 respondent permitted launching departmental proceedings against him cte rxwo and directed to adjust the period of absence of the petitioner against the leave at his credit. That Original Application was disposed of by the Tribunal by its order dated 02-05-2000 marked as Annexure P/1. The Tribunal has opined that the 2 respondent has ttie power to dii'ect cte fwm enquiry as provided under sub-Regidation (4) of R^ulatton 270 of the Regulations. With regard to the grievance of the petitioner in adjusb'ng his period of absence against the leave at his credit, the Tribunal has observed ttiat since the petitioner did not make any representafen before the competent authority regarding his above gnevance, there is no need for considering that grievance. (5) In this writ petition, the petitioner has not only assailed the correctness of the order of ftie Tribunal dated 02-05-2000 but also questioned the legality of launching the second departmental enquiry vide charge memo dated 22-03-2000. (6) On servtee of notice, a retum dated 17-04-2001 was filed on behalf oftherespondents. ^ ^. -^ (7) We have heard learned counsel for the parties. Learned counsel for the petitioner would contend that the charge earlier framed and the charge now framed in the charge memo dated 22-03-2000 is substantially similar and therefore, the second charge memo is liable to be quashed. It was next contended by learned counsel for the petiUoner ttiat the 2 respondent having set aside the order of the 3 respondent on 31-10-1999 on valid grounds ought to have directed the 3' respondent to reinstate the petitioner into service with all attendant benefits and advantages, pecuniary and otherwise, including back wages and refusal to do so is ex fecfe illegal. Learned Dy. Govt.Advocate, per contra, would submit that the power of the 2 respondent to direct cfe novo enquiry could not be questioned because of the provisions of sub- Regulation (4)0f Regulation 270 of the Regulations. He would submit that the petitioner though was guilty of serious misconduct for having kept mistress when the first marriage was in subsistence, the 2 respondent set aside thepunishment imposed by the 3rd respondent on a technical ground that proper charge was not framed and that circumstence woutd not enure to the benefit of the petitioner to claim back-wages at this stage particulariy when fresh charge memo has been served on him and the departmental enquiry is in progress. (8) Having heard learned counsel for the parties, we do not find merit in the first contention of learned counsel forthe petitioner. Sub-Regutation (4) of Regulation 270 reads thus; ' [(4) The revising authority may for reasons to be recorded in writing exonerate or may remit, vary or enhance the punishment imposed or may order a fresh enquiry orthe taking offurther evidence in the case: Provided that it shall not vary or reverse any order unless notice has been servedon the parfes -s- ^. interested and opportunity given to them for being heard]." In terms of sub-RegulaUon (4) of Regulation 270 of the Regulations, the power of the Revisional Authority to order a fresh enquiry can not be doubted. But, the contention of learned counsel for the petilioner is that the power to order a fresh enquiry is avaitable only to the revising authority and not to an appellate authority like the 2nd respondent. tt was pointed out that the 2 respondent while disposing of the appeat has directed fresh enquiry and therefore, it is illegal. The above submission of learned counsel for ttie petitioner is not well-founded. When an order is ttie subject matter of appeal or revision or review ultimately what the appellate authority or reviewing authority or revisional authority does is reviewing the order impugned before it if there are permlssible grounds are made out. Secondly, it needs to be noticed ttiat it is well settled that the appellate authorHy can do iteelf what the original authority can do in law unless it is directed otheiwise by law. Nobody can quesCon the power of the disciptinary authority to abandon a charge already framed and to frame a correct charge and proceed against ttie delinquent departmentally. Ifthe 3rd respondent himself could abandon the affective charge memo and frame appropriate charge against the delinquent and proceed against him departmentally, such pcwer available to the disciplinary authority is also available to the appellate authority. Looking from any angto, the power of the 3 respondent to direct fresh enquiry can not be doubted and in our considered opinion it was in order and legal. (9) There is also no merit in the contention of leamed counsel for the petitioner that the earlier charge and the charge now framed vide charge -6- ^. memo dated 22-03-2000 are identicat. fis could be seen from the charges extracted above, the earlier charge was that the petitioner during the subsistence of his first marriage with one Smt. Pramila Bai had kept another woman Shanti Bai, by name, as second wife. whereas, in the charge memo dated 22-03-2000 it is alleged that the petitioner during the subsistence of the first marriage has kept another woman Smt. Shanti Bai, by name, as his mistress for the last five years. (10) We, however. find substance in the grievance of the petitioner that since the 2nd respondent has set aside the order made by the disciplinary authority dated 31-10-1999, he ought to;have reinstated the petitioner into ser/ice and directed payment of back-wages and attendant benefits atleast till up to the order ofthe 2mi respondent i.e. 04-02-200). As could be seen from the order of the 2nd respondent dated 04-02-2000, he has opined that framing of the charge itself is defecUve. The 21ri respondent has also opined that there is absolutely no tegal evidence to substantiate the charge. If these are the findings of the 2 respondent, it goes without saying that the delinquent is entiUed to be reinstated into service vrith alt attendant benefite, pecuniary or otherwise, unless it is shown that during the out of employment period, the pet'rtioner-delinquent was gainfully employed elsewhere. That is not the case of the department. However, "rt needs to be noticed that since the 2" respondent directed fresh enquiry and in pureuance of the same, a charge memo was issued to the petitioner on 22-03-2000, there is no necessHy for us to deal with the question how the period behween 04-02-2000 and 22-03-2000 shoutd be treated. We teave that question to be decided by the department after conclusion of the departmental proceeding initiated against the peUtioner in accordance w'rth ttie relevant rulesfregulations. But, ttie peBtioner is Bl Billi II -7- ^^^i^ s^^^^s i:tli^^. SBSiS' entitled to back-wages for ttie period from 31-10-1999, the day on which Uie 3"1 respondent imposed the penalty of compulsory retirement on the peUtioner to 04-02-2000, the day on which the 2 respondent-appeltate authority set aside the order of the disciplmary authority. (11) In the resuH: and for the forgoing reasons, we dispose of the writ petitton directing the respondents to pay tock-vrages to the petWoner for the period from 31st October, 1999 to 04 February, 2000 (both days inctusive). tn the facts and circumstances of the case, Uie parties shatl bear their respecfive costs in this writ petition. Sd/- ChiefJustice sd-r DilipRaosahebDeshmukh Judge 1 i • ll' ^t ^•' 3: