u^c^/^^l/05 IN IHE STAIE ABMU'aSTRATIVE TRIBUNAL. aTaBMjPUR. •OS *97 •ifV- ...ApplicaRt .Respoadents O.A. ETO. BETWEEN A.S. Khess AND State of B.P. and otbers DESAILS OF APPLICA'CION E.articulaES ef the apslicaat. Name ef ttie applicaa-b tA.S. Khess Fatheri's Hsne SJ'. Khess Age of tbe applicant i37 years Desigaa-fcion aad garticulars (Sub-lBspector, Poliee of ©fficein wfaieh last Station, 0'agdalpur. aaployed la) (bJ (c) (e) Offiee address iNil, Address for serri.ee of nottcet&cS. Khess, Seetalesiscs- Sai BabgaStreet, Kaaker, Bas-bar. (il) £articula3?s of the'resooBdeats t*. S-fcate ef Maahya Pradesh» thirough Secretary, Beptt* of Home Afifairs, Vallabh Bhavaa, Bhopal. 2» B.I.S,,, Bastar Raage, J-agdalpur. 3. XoSo, Bhilai Range, Shilaio 4. D.@»P., Ma<3hya Praassh., Bfaopal.. 5. Add. S.Eo (Enqidry Officer) BaBtewada, Bastar. (iii) ?artieuiars of-the erders aaaiast whieh -the oetitiOR is made t Date of Qrdess Orders N6, Cc) Orders passed by t l* 27-i—*96 2. 10-5-,*96 3« 20-11-,'96 i 1. B.I.G.7Bas-tar/E'-A2 /^/1796-D/96 2. I.Q</M./S.-1/^1549 -E. 3. P.HQ./23B/2/9^96/ 236^96 i Respondea't ao. 2 Respondeat; ao.3 RespoadeRt Bo.4 G /-^^ HIGH CQURT OF CHHAmSGARH. BILASPUR SINGLE BENCH : HQN^BLE SHMMAMNDRA MOHAN SHRIVASTAVA.J. Writ Petition (Sl No. 1541/2005 PETITIONER RESPONDENTS A.S. Khess Versus State ofM.P. (now C.G.) and others ORDER •^ PQST ON 2?:MARCH, 2010 ^0^ ^^^ ^'^^v ^a ,'f . ,1.-'^ l.'^"^;Lt4y^^ f^. '^^s^^'^^i s ''•••^sS'"' ^ -y HIGH^OURTLOF CHHATTISGARH : BILASPUR SINGLE^ENCH : HON^BLE^SHRLMANINDRA MOHAN SHRIVASTAVA.J. PETITIONER RESPONDENTS Writ Petition fS) No. 1541/2005 A.S. Khess Versus State ofM.P. (now C.G.) and others Appearance: Shri Surfaraj Khan, counsel for fhe petitioner. Shri Bhaskar Payasi, Panel Lawyer for the State/respondents. ORDER (Passed on 22-.03.2010) 1. By this petition, the petitioner has assailed legality and validily of order dated 27.1.1996 (Annexure A-5) passed by respondent No.2/Dy. Inspector General of Police, Bastar Range, Jagdalpur imposing penalty of disruissal from service as also order dated 10.5.1996 (Annexure A-6) passed by the Inspector General of Police, Bhilai Zone, Bhilai, whereby the appeal filed by the petitioner against the order of imposition of penalty of dismissal from service, has also been dismissed. A further appeal filed by the petitioner was dismissed by respondent No.4, Director General of Police, Bhopal, M.P. vide order dated 20.11.1996 (Annexure A-7) which has also been assailed through this petition. 2. Facts relevant are that while petitioner was posted and working as Sub Inspector Poli& Station -Basasguda, District ^Jagdalpur, a departmental enquiiy was instituted against him by the '.il -w .)' •' i] K'y£%i -2- Superintendent of Police, Danteweara by issuing a charge sheet on 10.11.1994 (Annexure A-l) on as inany as 6 charges. Petitioner subraitted his reply to the charge sheet denying the charges leveled against him. Thereafter, enquiry was conducted by the Enquiiy Officer which eventually resulted in an enquiiy report holding the petidoner guilty of all the charges. Thereafter, a show cause notice dated 3rd January, 1996 (Annexure A-3) was issued to the petitioner by the respondent No.2/ Deputy Inspector General of Police, Bastar Range , Jagdalpur. Petitioner submitted his reply on 14.1.1996 (Annexure A-4) to the show cause notice. The enquiry finally culminated in imposition of penalty of disniissal from service vide order dated 27th January, 1996 (Annexure A-5). On appeal being filed, the same was also dismissed by the Inspector General ofPolice vide order dated 10.5.1996 (Annexure A-6). Petitioner then approached the Director General of Police, who also dismissed petitioner's appeal vide order dated 20th November, 1996 (Annexure A-7). 3. Leamed counsel for the petidoner, assailed the order by submittins that the order of imposition of penalty lacks coinpetence and jurisdiction and is violative of Article 311 (1) of the Constitution of India. It has been argued that the petitioner was appointed on the post of Sub-Inspector vide order dated 29.9.1984 (Annexure A-8) passed by the Deputy Inspector General of Police (Administration) in the office of Director General of Police of the State. Though at the time of issuance of charge sheet, Deputy Inspector General of Police was Appointing Authority in respect of Sub-Inspector under the Service Rules, as the petitioner was appointed by the Director General of Police, petitioner could not be dismissed from service by an Authority subordinate to ^y]j "e^ ^ - 3 ~ that by which he was appoihted in view of the constitutional bar contained in Article 311 (l) ofthe Constitution oflndia. F'urther sub'mission of learned counsel for the petitioner is that the Superintendent of Police had no jurisdiction to even issue charge sheet in the case of the petitioner as he is neither Appointing nor Disciplinary Authority of the petitioner. Next submission to assail the enquiry proceedings and the order of penalty is that charges are vague and incomplete. In the statement of allegations pertaining to charge No.l, it has not been mentioned as to when and at what place alleged particular act was committed by the petitioner. Charge No.2 is also not clear as it has not been mentioned as to when Rs.300/- were taken by the petitioner and where it was taken. Charges 3, 4, 5 8s 6 also suffer from ambiguity and vagueness. It is further argued that as the charges were not clear, the delinquent employee was not in a position to defend effectively. Contention of learned counsel for the petitioner is that as consequences of departmental proceedings are penal like a criminal • proceeding, each and every charge should be precise and clear with date, place and time of occurrence of the offence. Though in the petition, some more grounds have been inentione'd, learned counsel for the petitioner has confined his submissions only to the aforementioned grounds of challerige. 4. Replying the arguments, learned counsel for the respondents/State submitted that under the provisions contained in the Schedule appended to the M.P./C.G. Civil Services (Classification, Control 85 Appealj Rules, 1966, (henceforth "the Rules of 1966"), the Deputy Inspector General of Police has been prescribed as Competent -4- '^) Disciplinary Authority einpowered to impose any penalty specified in Rule 10 of the of the Rules of 1966 on an officer holding the post of Sub Inspector. It is also submitted that all that Article 311 (1) postulates is that a Government employee cannot be dismissed, removed or reduced in rank by an Authority subordinate to that by which he was appointed and it does not follow that even initiation or conduct of proceedings should be by that Authority itself, who is empowered to dismiss or remove in rank an officer under the said Article. It has been argued that the Superintendent of Police is competent to impose minor penalty and as such, being Disciplinary Authority is empowered to issue charge sheet. Replying the argument reladng to vagueness of charges, it has been argued that a perusal of the charge sheet would demonstrate that all the charges are not only separate and distinct in nature but have also been described and elucidated and cannot by any means be termed as vague. A full-fledged enquiiy was held in which 30 prosecudon witnesses were examined and the petitioner was afforded opportunity to cross-exaiaine those witnesses. Not only that, petitioner was also afforded opportunity to adduce defence witnesses and 5 defence witnesses were allowed to be examined. Copy of the documents relied upon by the prosecution were also duly supplied to the petitioner. Thus, there was no violation of principle of natural justice as adequate opportunity was afforded to the petitioner. A copy of enquiry report was also supplied to the petitioner. Out of 6 charges, 4 charges were found fully proved, whereas remaining 2 charges were found partially proved. Taking into consideration the gravity of charges and seriousness, punishment of dismissal from service was imposed on the petitioner. "» ,,'^p 'iu-il. 1\^^y '"'s.isas1'''" -5- 8-! Further submission of the learned counsel for fhe respondents is that as no malafide has been alleged much less proved nor a case of no evidence nor it being a case of order passed by Incompetent Authority, no inference is called for. 5. I have considered the rival submission of learned counsel for the respective parties and perused the record. 6. Petitioner has placed on record his order of appointruent dated 29.9.1984 (Annexure A-8), by which the petitioner was appointed as Sub Inspector. The said order of appointment was issued by the Deputy Inspector General of Police (Administration) in the office of Director General of Police of the State. Contention of leamed counsel for the petitioner that though above order was passed by D.I.G, the order was passed for and on behalf of the D.G.P. of the State of M.P. and therefore in the eye of law the order was passed by the D.G.P. cannot be accepted. At the tirae of issuance of the aforesaid order, the statutory Appointing Authority in respect of Sub-Inspector was Deputy Inspector General of Police under the Heading - Home Department (Police) of the Schedule appended to the Rules of 1966. Thus the statutoiy power of appointment on the date of issuance of the order dated 29.9.1984 vested in Deputy Inspector General of Police. Merely because the appointment order was issued by the DIG, Madhya Pradesh in the Police Headquarters, it would not lead to inference that the order of appointment was issued by the Director General of Police. The order of punishment was imposed on the petitioner by the Deputy Inspector General of Police, Bastar Range, Jagdalpur. It would thus be seen that the petitioner was appointed by the Deputy Inspector General of Police and was dismissed from service by Deputy Inspector General ;» -6- of Police. I am therefore of the considered opinion that there is no violation of constitutional provision contained in Article 311 (1) of the Constitution of India. The protection guaranteed under the Constitution is that no person who is a member of civil service of the State or holds a civil post under the State shall be disraissed or removed by an authority subordinate to that by which he was appointed. As the Authority who appointed the petitioner and the Authority who imposed the penalty of dismissal were equal in rank and DIG Bastar Range, Jagdalpur could not be said to be subordinate to DIG (Administration) Police Headquarters., contention of leamed counsel in this regard cannot be accepted. Reliance placed by the petitioner on the judgment of High Court of Madhya Pradesh in the matter of Shardul Sineh, Ex. Sub-Inspector of Police Vs. State ofM.P. & Ors. (1966 M.P.L.J. 1451 is misplaced. In the aforesaid judgment of High Court of M.P. it was held that constitutional guarantee provided under Article 311(1) extended even in the matter of issuance of charge sheet and concluded that the Superintendent of Police, Sarguja was not Competent initiate or conduct the enquiry against fhe writ petitioner, a Sub Inspector, as he was appointed by the Inspector General of Police. The aforesaid judgment was challenged in the Supreme Court and the Supreme Court reversing the judginent of High Court negativing the contention raised and accepted before the High Court held that Article 311 (1) does not in terms require that the authority empowered under that provision to disraiss or remove an official, should itself initiate or conduct the enquiiy preceding the dismissal or removal of the officer or even that enquiry could be done at its instance. IIL. 'l, atffPll i -7- 7. Learned counsel for the petitioner has also placed reliance upon the / decision of M.P. High Court in fhe case of Bbaewandas Ahirwar Vs. State of M.P. SB others (1985 JLJ 599). The said case is distinguishable on facts inasmuch as in that case it was found that though the Sub Inspector was appointed by the order of Inspector General of Police, he was disinissed from service by a Deputy Inspector General of Police who was later on authorized to appoint Sub Inspector. In that factual situation, it was held that even if at the time of imposition of punishment, Deputy Inspector General of Police had become the Appointing Authority/Disciplinary Authority, constitutional protection guaranteed under Ardcle 311 (1) was violated as the Authority who disjnissed Sub Inspector in that case was Deputy Inspector General of Police subordinate to Inspector General of Police who had appointed Sub-Inspector. Reliance placed in the case of Krishnanarayan Shiypyare Dixit Vs. State of M.P. and others. (1985, MPLJ 343) is also raisplaced in view of the discussion as above. Reliance placed on the authority in the case of State of Uttar Pradesh Vs. Mohd. Sharifldeadl throueh Lrs., AIR 1982 SC 937 is distinguishable on facts. / 8. The other contention of learned counsel for the petitioner that the constitutional guarantee provided under Article 311(1) of the Constitution of India required that even the charge sheet should be issued an enquiry conducted by the Authority who appointed the petitioner stands answered by the Supreme Court in the case of State of M. P. 8s others Vs. Shardul ^ingh^U970L3_SCC^108. The aforesaid view was reiterated in the case of State of U.P. and another Vs. Chandrapal Singh and another (2003) 4 SCC 670 and it was held as under: "4. The facts that are not in dispute are: Respondent 1 was appointed on 24-6-1966; the two GOs aforementioned were very much in existence and operative much prior to his appointment, under which GOs, the District Agriculture Officer was competent to initiate disciplinary proceedings as an appointing authority, as is evident from the GOs themselves. He was appointed by the Director of Agriculture and fhe order of dismissal was passed by the Director of Agriculture on 11-4-1977. In other words, it is the appointing authority which passed the order of dismissal. Before the Tribunal, the stand of Respondent 1 was that the District Agriculture Officer being lower in rank than the appointing authority of Respondent 1, namely the Director of Agriculture, neither could he initiate disciplinary proceedings nor could any action be taken on the disciplinary proceedings so initiated by an incompetent authority. This contention found favour with the Tribunal as well as with the High Court. Before us, the learned counsel for Respondent 1 submitted that the District Agriculture Officer was the appointing authority in the year 1966, when Respondent 1 was appointed, the Director of Agriculture could not h.ave appointed him. This submission ignores the basic fact that if this order of appointment was incompetent, in that case the very appointment of Respondent 1 goes away. It appears that this is a stand taken before us for the first time and we have no hesitation to reject this contention. In terms of Article 311 of the Constitution, no person who is a member of the civil service of the Union or all-India service or civil service of a State or holds a civil post under the Union or a State, shall be dismissed or removed by an authority subordinate to that by which he -9- was appointed. Admittedly, in this case, the Director of Agriculture actually appointed Respondent 1 . 8. Thus, looking to the terms and content ofArticle 311(1) of the Constitution, it does not follow that even initiation or conduct of enquiiy proceedings should be by that authority itself, which is empowered to disiniss or remove an official under the said article, unless there is an express rule governing the official requiring it to be so." 9. The next contention is that the issuance of charge sheet by the Superintendent of Police was not in accordance with law inasmuch as the disciplinary proceedings should be instituted and initiated by issuance of charge sheet only by the Authority empowered under Rule 13 of the Rules of 1966. Leamed counsel for the petidoner submits that the S.P. was neither the Appointing Authority nor the Disciplinaiy Authority nor an Authority erapowered by any general or special order. Therefore, he could not issue the charge sheet. This contention has no merit. Regulation 221 of the M.P./C.G. Police Regulations clearly provides that an Asst. Inspector General or a Superintendent of Police may inflict on S.I. the penalty specified in Regulatioh (i) (iv) or in Regulation 215 (a) (b) or withhold the increment of a Sub Inspector for a period of one year from the date on which it falls due. Regulation 228 further provides that in eveiy 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 proceeding must be recorded by the Superintendent in the prescribed form, - setting forth the details as enumerated therein. Regulation 229 provides that if the Superintendent is empowered to pass the final order in the case, the papers will be filed in his office, whereas in other cases, it will be llli ^^^ .^^f -10- forwarded to different authorities as enunciated therein. Regulation 232 provides that iffor any reason, the Superintendent of Police cannot hiraself conveniently hold a departmental enquiry, he raay frame charges against the accused and order an Assistant or an Inspector, or Police Prosecutor or Conipany Commander, to record the statements of witaiesses and the defence, and return the papers'to him with a report on the case. It further provides that an Assistant or Deputy Superintendent in charge of a sub-division will ordinarily hold all departmental enquiries into the conduct of officers of and below the rank of Sub-Inspector serving in his sub-division. It further provides that S.P. will himself hold all departmental enquiries in which the accused is an inspector and that he will also himself hold the enquiry in any other case in which he considers such a course necessary or desirable. 10. From the aforesaid provisions, it is clear that though it has not been stated in specific words as to who will issue the charge sheet; it is clear that the S.P. is competent to conduct the departmental enquiry against the Sub Inspector. Even under the provision contained in the Rules of 1966, departmental enquiry could be instituted by issuance of charge sheet by a Disciplinary Authority who is competent to impose penalties specified in clause (i) to (iv) ofRule 10 ofthe Rules of 1966. Since in the Police Regulations, S.P. is competent to impose minor penalties as specified in Regulation 221, there is no merit in the contention that the S.P. had no authority to issue charge sheet or conduct the enquiry against the petitioner. The same is therefore rejected. 11. Other contention raised by counsel for the petitioper with regard to vagueness of the charges that specific date, time and place was not IL .i-^y^S^ '^ ••'-.. ^'i:'i'%'ss'^ s ^* / y '';;.:>.. "&r ••'^•-•-t^!^' -11- mentioned, it could not be said from the reading of the entire charge sheet including the statement of allegations that the charges suffer from vagueness to the extent that petitioner was unable to understand nature of charges and factual basis for the same. It has also not been demonstrated as to how non-mention of specific date, prejudiced the defence of the petitioner. In the reply dated 21.12.1994 (Annexure A-2) to the charge sheet filed by the petidoner, it was not stated that the petitioner is unable to properiy understand the charges on account of vagueness or that any other specific details with regard to particular date having not been menfioned he is unable to submit his reply. Even in his reply dated 14.1> 1996 (Annexure A-4) to show cause notice dated 3.1.1996 (Annexure A-3) it has not been stated that for want of mention of specific dates, petitioner suffered any prejudice. The pedtioner has also not demonstrated that any such ground was taken by him in his raemo ofappeal. From the order ofAppellate Authority, it is not .reflected that any such ground was raised. As such, there is no merit in the contention of the learned counsel for the petitioner. Moreover, as has been recorded hereinabove, the petitioner never raised any objection in this regard ever since the date he received the charge sheet till the passing of order in appeal and for the first time this ground has been raised in this petition. 12. As an upshot of discussions as above, I do not find any merit in this petition. The petition is liable to be dismissed and is hereby dismissed. No order as to costs. ___—— Manindra Mohan Shrivastava Judge |]:ir;yi'ser!