\ \ £H THi- KiAyHYA P&ADcSH Ai-fciINISTMAi'X'KE THByNAt, JABAUUtL M.P. B£.Iw£l;I< ;- H.avindra Solanki. tApplicantj WQ ! .:^ :, ' . State of M.P. and others. tjiiespondepts) DBTrt£L§_QFA^'ti.eSt,..i.ons~ J.. Pa.cticdlars of the Appl.icant; - . (i) Name pf the applicant:-aavindra -£«yq^a''~Solar)ki. \ii/ Name of Father; - Shri Gangasingh Solank.i.. tiii) Age of the applieant;- 32 years. ^ivjuepiigiiia^fliun and particulars 01 affice (narne and sta'tJ.on) in which he was last etapioy'ed before eeaslng to bbe.j.i.a serviee; - ConstabJ-e no. 171 P.-»«KaiA;ardha,u.i.fitt.^ajnandgaonM.P. {v) Office adress ; - As acove. • ' ,a '!< • iil i UX •|ya ••..^s ->..-^-.as -i ' -:it.-& o.a.i.ns \va.)Adress for service of nottce: .^r.no.72 Police IjA®' ^aQ -Kawardha Distt.rtajnandgaon M.P. -—>^taSga-iB f.;:: 2. Part.i.cul^rs of the resoondents: - °'"?•'*• 'i^' i ^^) State of M.P.,through tne sec.retary,Hoae aepl.t. . ::Pa' G&v-fc.Of M.P., Vallabh Bbavan Bhopal M.P. ' ^l-n< ^ {,'iij Deputy Xnspeetor GenecaJ. of PoJ.j.ce,Ha.ipu± Area.Haipur M.P. lili) JSupsrintendent.of Police.fiajnandgaonM.P. i (iv^Sub-divisional officer' [PoJ.ice/ at & EiyfQy'i Kawardlia Distt. liajnaildsaon M.P. 3. Particular^ of brcier agains-t wtiich the application ^^3-s fflade.The appiJ.cation is ssade aQainst the follow- ing order;- , .' ' : , .' k i) order No.s- S.P^aJ./3.£./17/9^/l75,LlSA^.^.^.=- :;'tb, .^^ ^ I.C< rt. i'le Vfs ' ls :!• r'v B» ,4?^'. u,^A i?l •^:::if^l"—s^ i-S < > A l HIGH COURT OF CHHATTISGARH, BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRFVASTAVA.J. Writ Petition (S) No.842/2005 PETITIONER RESPONDENTS Ravindra Solanki Versus State 6f Madhya Pradesh & Ors. ORDER a4 POST ON 2>"AUGUST, 2010 Sd/- ManindraMohanShrivast Judge ava HIGH COURT OF CHHAmSGARH: BILASPUR SINGLE BENCH : HON'BLE SHRIMANINDRA MOHAN SHRrVASTAVA.^J. PETITIONER RESPONDENTS Writ Petition (Sl No.842/2005 Ravindra Solanki Versus State of Madhya Pradesh 8s Ors. Appearance: Shri B. D. Guru, counsel for the petitioner. Shri Ajit Singh, Panel Lawyer for the State, ORDER (Passed on ^ .08.2010) 1. By this petition, the petitioner has called in question, legality and validity of order of penalty dated 18.3.1993 (Annexure A-19) passed by 3rd respondent namely Superintendent of Police, Rajnandgaon and order dated 26.6.1993 (Annexure A-21) dismissing the petitioner's appeal. 2. Facts necessary for decision of the case in hand are that while the petitioner was working as Constable in Police Station - Kawardha, a conaplaint was made against the petitioner by one Subhash Sharma, brother of victim Kamini Shanna that the petitioner has committed rape and said Kamini delivered a child on 12.7.1991. On such complaint made, Sub Divisional Officer (Police), Kawardha enquired into the complaint made by Subhash Sharma and submitted report to the Superintendent of Police on 2.10.1991, wherein it was reported that the petitioner had illicit relationship with Kamini Sharma and the -2- allegation of committing rape is not correct and made a recomruendation for imposition of penalty. Thereafter, Superintendent of Police, Rajnandgaon imposed a penalty of "frT??T" (censure) . 3. While the matter stood thus, a charge sheet (Annexure A-2) was issued to the petitioner on 5.6.1992 by the Superintendent ofPolice instituting departmental enquiiy on the charges that the petitioner being married, attempted to establish illicit relationship with Kamini, sister of complainant-Subhash Sharma by falsely representing his status as unmarried and thereby exhibited doubtful conduct and tarnished the image of the Police. Upon completion of enquiiy, the Enquiry Officer submitted enquiiy report, which led to issuance of impugned order dated 18.3.1993 (Annexure A-19), by which the petitioner was removed from service. Aggrieved by the said order, the petitioner preferred a departrnental appeal before the Dy. Inspector General of Police, Raipur, who, vide impugned order dated 26.6.1993 (Annexure A-21) dismissed the appeal. 4. Learned counsel for the pedtioner contended that once a penalty was imposed on the petitioner vide order dated 23.10.1991 (Annexure A-l), the same having not been appealed against, nor any revision filed by the petitioner or any other authority, nor any suo motu review or revision undertaken by the Competent Authority, attained finality. The Superintendent of Police, fhe Disciplinary Authority, therefore, could not have aga.in initiated an enquiry by issuing charge sheet to the petitioner. Learned counsel for the petitioner submitted that this would amount to double jeopardy and is not only impermissible under the rules applicable, but also violative of article 20 (2) of the Constitution of India. It was argued that unless the eariier order of punishment of -3- censure is cancelled or recalled by a Competent Authority under the rules, the Disciplinary Authority, in the absence of express power to re- initiate enquiry on the same charges, acted in excess of authority and, therefore, the subsequent proceedings and the order of penalty, all are illegal and unsustainable in law. Further submission of learned counsel for the petitioner is that there is material contradiction and omission in the statements of witnesses in the enquiry, which was earlier conducted and on the basis of which, the first punishment order was issued, and the statements recorded subsequently in the second round of enquiry initiated by issuance of charge sheet dated 5.6.1992 (Annexure A-2). The next contention of learned counsel for the petitioner is that before initiating second enquiry, no reasons were assigned by the Disciplinary Authority much less recalling earlier order and therefore the action is arbitrary and violative ofArticle 14 of the Constitution of India. It is then contended that the order passed by the Appellate Authority in appeal is non speaking order and none of the grounds raised by the petitioner in the departmental appeal have been taken into consideration. Learned counsel for the petitioner, in support of his submission, as referred to above, relies upon judgments of the Supreaie Court in the cases of State through Superintendent of Police, CBI/SIT Vs. Nalini & Ors.1, Divisional Forest Officer, Kothaeudem & Ors. Vs. Madhusudhan Rao2. Lt. Governor Delhi SB Ors. Vs. H C Narinder Sineh3 &, Kanailal Bera Vs. Union of India Ors.4 ' (1999) 5 SCC 253 2 (2008) 3 SCC 469 3 (2004) 13 SCC 342 "(2007) 11 SCC517 -4- 5. On the other hand, submission of learned counsel for the respondents is that vide order dated 23.10.1991 (Annexure A-l), a penalty of censure was imposed on the petitioner for having misbehaved with one Kamini Sharma and that the said punishment of censure has nothing to do with the charges which were framed against the petitioner in the second enquiiy, instituted by issuing charge sheet dated 5.6.1992 (Annexure A-2). It is submitted that the punishment of censure was imposed for misbehaving with Kainani Sharma, whereas the penalty of dismissal is in respect of charge that the petitioner deceived said Kamini Sharma for four years and contacted and established illicit relationship with her and, therefore, the two charges are entirely distinct and separate. It is also submitted by learned counsel for the respondents that the departruental enquiry has been conducted in accordance with law and proper opportunity of hearing was afforded to the petitioner. The Enquiry Officer found the charges proved and, therefore, the Disciplinaiy Authority is justified in imposing the penalty of removal on the petitioner. It is further contended that the Appellate Authority is not required to record detailed reasons while confirmin^ order of Disciplinary Authority. The contents of order passed in appeal show that the Appellate Authority did apply its mind before dismissed the appeal. 6. I have considered the rival submissions of learned counsel for the parties and perused the records. 7. Along with charge sheet dated 5.6.1992 (Annexure A-2), list of documents includes an enquiiy report dated 2.10.1991 of the Sub- Divisional Officer (Police), Kawardha and other documents enlisted at Sr. Nos. 2, 3, 3A8s 4. The charge sheet also contains list of witnesses -5- enlisting as niany as 8 witnesses. A perusal of report dated 2.10.1991 of the S.D.0. (P) leaves no inanner of doubt that the order of penalty dated 23.10.1991 was passed on the saine set of allegation which formed subject matter of enquiry by charge sheet dated 5.6.1992. In fact one of the most relevant and important docuraents to sustain charges against the petitioner in the charge sheet dated 5.6. 1992 is the report dated 2.10.1991 of the S.D.O. (P), Kawardha. The allegation therein was that the petitioner committed ra.pe with Kamini. Along with the report, statements of Subhash Sharma, Smt. Lili Sharma, Dinesh Sharma and Kamini Sharma have been also attached as documents of the charge sheet, which also go to show that there was an allegation against the petitioner of having cominitted rape of Kamini. The S.D.0 (P) held an enquiry and then came to the conclusion that it was not a case of rape, but it is found that the petitioner had established illicit relation with Kamini and proposed penalty. It was thereafter, that order dated 23.10.1991 (Annexure A-l) was passed, whereby penalty of censure was imposed on the petitioner on the allegation of indecent behaviour with Kamini. This order was passed by Superintendent of Police, Ragnandgaon, who happened to be the Disciplinary Authority of the petitioner. 8. If the complaint and statements of various persons and report dated 2.10.1991 of the S.D.0. (P) is looked into and the same is kept in juxtaposition with the charges leveled against the petitioner in charge sheet dated 5.6.1992, it is inevitable conclusion that both related to one and the same allegation arising out of the same incident. This is also clear from the statement of Kamini Sharma, Subhash Sharma, -6- Smt Lili Sharma, Dinesh Kumar Sharma, Govind Ram Sharma, Dilip Singh Rathod & T.S. Katlam. 9. The contention of learned counsel for the respondents that the penalty of censure was earlier imposed vide order dated 23.10.1991 has nothing to do with the charges framed under charge sheet dated 5.6.1992 (Annexure A-2) and that there is no nexus between the two cases, cannot be accepted on fhe face of material as discussed above. I have, therefore, to conclude that the misconduct for which penalty of censure was imposed on the petitioner vide order dated 23.10.1991 (Annexure A-l) and one in respect of which the charge sheet was issued on 5.6.1992 are one and the same. The next question, therefore, which arises for consideration is whether the Disciplinary Authority namely Superintendent of Police, Kawardha had authority under the law to issue second charge sheet in respect of the same allegation for which a punishment was earlier imposed by it, though minor in nature, against the petitioner. 10. Reguladon 213 of the Police Regulations provides that the rules contained in All India Service (Discipline and Appeal) Rules, 1955 and those in the Civil Services (Classification, Control & Appeal) Rules, 1966 (hereinafter referred to as "the Rules of 1960'} will regulate the punishment of and appeals from officers belonging to the India Police Service and the State Police Service respectively. The punishment that could be imposed on any member holding a post in a Subordinate Police Service is governed by Regulation 214 of the Police Regulations. Regulation 215 provides for punishment of non-gazetted officers. Regulations 216 8s 217 talk of punishment of Head Constables & Constables, which includes other punishment in addition to -7- punishment mentioned in Regulations 214 8s 215. Punishment of censure is one of the punishments specified in Rule 10 of the Rules of 1966. It is therefore clear that the petitioner was subjected to punishment on the stated allegation of misconduct and a penalty of censure was iraposed on him by the Disciplinaiy Authority. . 11. Both under the scheme of Police Regulation as also Rules of 1966, the power of review of an order of penalty has not been expressly conferred on the Disciplinary Authority. The Disciplinary Authority, unless expressly conferred with the power of review, could not review its order, passed in its capacity as quasi-judicial authority. 12. Provisions relating to appeals and revision are contained in Chapter X of the Police Regulations. Regulation 270 makes provision with regard to revision and provides that every order of punishment of exoneration, whether original or appellate shall be liable to revision suo-motu by any authority superior to the authority making the order. It further provides that every appellate order by a final appellate authority shall be liable to revision by such final appellate authority, on application made in that behalf by the person against whom the order has been passed. It is also provided therein that the revising authority may for reasons to be recorded in writing exonerate or may remit, vary or enhance the punishraent imposed or may order a fresh enquiry or the taking of further evidence in the case, provided that it shall not vaiy or reverse any order unless notice has been served on the parties interested and opportunity given to them for being heard. The remedy of appeal is also available to the employee who has suffered an order of punishment under Regulation 214. 13. From the examination of the aforesaid statutoiy scheme, it would be clear that once the Superintendent of Police had passed the order imposing a penalty of censure on the petitioner, it had no authority to review or revise its own order by initiating fresh enquiiy on the same allegation, as those powers are expressly conferred and exercisable by the authority mentioned under Regulation 270 of the Police Regulations. Initiation of fresh enquiry on the same set of charges without recalling or cancelling earlier order of punishment, is without the authority of law. The powers of Disciplinary Authority are those which are conferred upon it under the relevant service rules and in the present case, Police Regulations and the Rules of 1966. The Disciplinary Authority does not exercise any plenaiy jurisdiction of unlimited nature, nor the power to review, is inherent. The Disciplinary Authority could exercise only those powers and act only in the manner as prescribed and pennitted under the Police Regulations and Rules of 1966 and not beyond that. Even under the provisions contained in the Rules of 1966, power of review available under the Rule 29 thereof, is not exercisable by the Disciplinaiy Authority where the Superintendent of Police happens to be the Disciplinary Authority. This is clear frorn plain reading of provision contained in Rule 29 of the Rules of 1966. The action of Superintendent of Police, the Disciplinary Authority, in holding fresh enquiry by issuing charge sheet and imposing punishment of removal, which amounts to enhancing earlier order of punishment of censure on the sarae allegation, is in excess of authority -9- 14. In the case of H C Narinder Singh (supra), in sirailar situation where on the same allegation, punishment was imposed and then another show-cause notice was issued, it was held as under: "4. Reading of the show-cause notice suggests as if it is in continuation of the departmental proceedings. Lack of devotion to duty is mentioned as the reason for the proposed action which was the subject-matter of the eariier proceedings as well. The second proposed action based on the same cause of action proposing to deny promotion or reversion is contemplated under the impugned show-cause notice. Second penalty based on the same cause of action would araount to double jeopardy. The Tribunal was, therefore, right in law in annulling such an action. We are not expressing any opinion on the ambit or scope of any rule." 15. In the case ofKanailal Bera (supra), assailing validity ofanother round of enquiry, submission made before the Supreme Court was- "5. Leamed counsel appearing on behalf of the appellant in support of his appeal submitted that the High Court in a situation of this nature should not have refused to entertain the writ petition as also the letters patent appeal preferred by the appellant herein only on the ground of delay and laches as a result whereof manifest injusdce has been caused to him. Learned counsel would point out that in terms of Rule 27 of the Central Reserve Police Force Rules, the respondent could not have initiated a second inquiiy after having found that the charges have been partially proved in the first inquiry. It was, furthermore, contended that in the Central Reserve Police Force Act and the Rules framed thereunder, there does not exist any provision for imposition of punishment of -10- ^ is^y '\sy conflnement to Civil Lines which was applicable only to the persons governed by the Army Act. and the Supreme Court held as under : 6. The question as to whether a punishment of confinement to Civil Lines could have been directed or not should not detain us as we agree with the contention raised by learned counsel for the appellant that the purported order dated 5-4-1995 of the disciplinary authority was unsustainable in law. Rule 27 of the Central Reserve Police Force Rules, 1955, inter alia, lays down the procedure for conducting a departmental inquiry. Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In a given situation further evidences niay be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry." In the aforesaid case (Kanailal Bera), placing reliance in earlier decision in the case of K. R. Deb Vs. CCE [ (1971) 2 SCC 102} ], it was held as under: "7. In K.R. Deb v. CCE this Court while considering the provisions contained in Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 held as under: (SCC p. 105, paras 12-13) "12. It seems to us that Rule 15, on the face of it, really provides for one inquiiy but it may be possible if in a particular case there has been no -11 - proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiiy or were not examined for some other reason, the disciplinary authority may ask the inquiry officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the inquiring officer or officers does not appeal to the disciplinary authority. The disciplinary authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. 13. In our view the Rules do not contemplate an action such as was taken by the Collector on 13-2- 1962. It seeras to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the Rules but was harassing to the appellant." 16. Viewed from any angle, the impugned action of initiating second round of enquiry and imposing a punishment of removal from service was without jurisdiction and authority of law. It would have been only within the domain of jurisdiction of the authority specified in Regulation 270 of the Police Regulations to adopt such course of directing fresh enquiiy, if at all the circumstances of the case so warranted. That admittedly has not been done by the respondents. The Appellate Authority did not at all apply its mind and passed a totally non-speaking order, dismissing the appeal. 17. In the ultimate analysis, the order of penalty dated 18.3.1993 (Annexure A-19) passed by the Disciplinaiy Authority and order dated -12- 26.6.1993 (Annexure A-21) passed by the Appellate Authority in appeal, are held illegal and unsustainable in law and, therefore, set aside. 18. Petition is accordingly allowed to the extent and in the manner indicated above. 19. There shall be no order as to costs. Sd/- Manindra Mohan Shrivastava Judge Praveen