AMENDED PETITION IN THE HIGH COURT OF CHHATTISGARH A‘I‘ §ILASPUR. EIHT PETITION (S )NO.270 OF 2010 ‘U‘I E CONSTITUTION OF’ INDIA. FOR ISSUE OF AN ‘APPROPRIATE WRIT IN 1mg NATURE__ 01‘. MANDAMUS [CERTIORARI ETC. ORM DIRIECTUQ_N_ [ORDER IN {TI-IE LIKE NATURE ETC. I WRIT PETITION UNDER ARTICLE 226 OF ‘MAY THIS PLEASE To Y_0UR LORDSHIIL %m PETITIONE}; Tejnath Singh S/o Shri Gopal Singh, aged about 46 years, Occupation -—Sub Inspector [Police] ,Pol.icc Station Gandhin‘agar‘ District Sarguja C.G. VERSUS RESPONDENTS 1. The State of Chhattisgarh through the Secretary Home Department, DKS Bhawan Raipur C.G. 2. The Inspector General Sarguja Range, Ambikapur, District Surguja C.G. 3. The Superintendent of Police Korea ,District Korea C.G~ 4. The Superintendent of Polfce S_urguja ,District Surguja C.G. k HIGH COURT OF cHHATTISGARH AT BILASPUR (Hon. Mr. Jus‘ticé PritinkerDiwake’r) - Writ Petition (S) No. 27o of 2010 VPETlTlONER Tejnaih Singh i VERSUS RESPQDENTS N S s tate of Chhattisgarh and other r P 2 ost for pronouncement of order on g 4& S Prit‘inker Diwaker K/ /lar f/ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinkér Diwaker) Writ Petition (S) N0. 270 0f 2010 Dr Rajesh Pandey counsel for the petmoner Shrl V V S Moorthy Dy AG for the respondents WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA o R D E R (%.11’.2o10) The petitioner who is working as Assistant Sub Inspector in the Police Department, State. of Chhattisgarh, has chalienged the legaiity, vaiidity and propriety of the order dated 11.1.2010 (Annexure P-1) passed by respondent N02 herein suo motu exercising revisional power as per Regulation 270 of Chhattisgarh Police Regulation and thus revrsing the order dated 2O 11 2009 Imposmg the penalty of reduction In rank from Sub inspector to Assrstant Sub Inspector for one -1“ year This is a classic case in which revising authority — the respondent N02 while exercrsrng suo moto revrsronal power under clause 270 (1) of the Chhattisgarh Police Regulation enhanced the penalty awarded to the petitioner during the pendency of statutory appeal preferred by the petitioner under clause 263 of the regulation Without awaiting the decrsron of the appeal and hat too in flagrant violation of clause 4 of 270 of the regulation and In complete breach of principles of natural Justice. 2. Facts of the case in brief are that at the relevant time the‘ petitioner was working as Sub Inspector in the Police Department,‘ State of Chhattisgarh and was poste Baikunthpur District Korea Allegation against him was that on‘ PETITIONER Tejnath Singh VERSUS RESPONDENTS State of Chhattisgarh and others -2__ 28.1 .2007 one Gulab Singh had gone to the said police station to lodge the FIR as his son Surendra Singh was brutally beaten by Poonam Singh, Kalyan Singh and others but the petitioner did not register the same promptly. On receiving the complaint on} 28.4.2007 (Annexure P- 2) a show cause notice was given to the petitioner which was duiy replied to by him on 6.7.2007 (Annexure P-3) denying the allegations made against him. However, being dis-satistied with the reply, charge sheet (Annexure P-4) was given to him. Reply to the charge—sheet was submitted on 26.5.2009 (Annexure P-5). Enquiry Officer was appointed on 12.6.2009 vide Annexure P-6 who submitted the enquiry report (Annexure P-7). On 20.11.2009 vide Annexure P-8 the petitioner was imposed penalty of stoppage of one increment with cumulative effect. Before the petitioner could question the penalty imposed on him by way of appeal, by letter No. Kra/Mni/SirNari.Steno/1313/09, dated 14.12.2009 the order of penalty passed by the Superintendent of Police dated, 20.11.2009 was set aside by the Inspector General of Police, respondent No.2 herein, holding the punishment so imposed to be inadequate. On the same day i.e. 14.12.2009 a show cause notice (Annexure P-10) was issued by respondent No.2 itself stating therein that as the penalty imposed by the Superintendent of Police appeared to be inadequate, the petitioner should submit his reply within 5 days as to why disciplinary action should not be taken against him. Reply to this show cause notice was submitted by the petitioner on 25.12.2009 vide Annexure P~11 and thereafter the impugned order has been passed. 3. Counsel for the petitioner submits that the order impugned (Annexure P-1) is purported to have been passed in appeal filed by the petitioner 'whereas in fact the said order has been passed by respondent No.2 — Inspector General of Police suo motu exercising the revisional powers. He submits that the order impugned is contrary to $ the provisions of Regulation 27 of the Chhattisgarh Police Regulation , and the inspector General of Police could not have reversed the order of the Superintendent of Police without giving him prior opportunity of ,l hearing. ’He submits that on 14.12.2009 itself vide letter No.[ l l l #z,‘ Kra/Mni/SirNari.Steno/1314/09 a show cause notice was given to the petitioner. He submits that the seCond letter issued on 14.12.2009 (Annexure P-10) is nothing but an empty formality because before issuing the same a decision was already taken by the Inspector General of Police (Respondent No.2 herein) to set aside‘the order of the Superintendent of Police which is contrary to the Chhattisgarh Police Regulation. He submits that the order impugned has been passed by respondent No.2 without application of mind and the same is not a speaking one. He submits that the order impugned has been passed without even waiting for the period of limitation prescribed for presentation of appeal as per Regulation 263 of Chhattisgarh Police Regulation. He submits 'that penalty was imposed by the Superintendent 'of Police on 20.1 1 .2009, petitioner preferred an appeal on 15.12.2009 and before the appeal could be heard by the Inspector General of Police, appellate authority itself has set aside the order of the Superintendent of Police vide order dated 14.12.2009 holding the same as inadequate and a show cause notice was issued to the petitioner for enhancing the same. He submits that not only the mandatory provisions of law have been violated by the respondents but the right of the petitioner to prefer the appeal has also been taken away. He submits that as per Regulation 213 of the Chhattisgarh Police Regulation, the provision of Chhattisgarh Classification (Appeal and Revision) Rules are also applicable particularly when the police Regulation is silent with respect to the procedural law in the departmental enquiry and in view of the provisions of Section 29 (2) of the Chhattisgarh Classification (Appeal and Revision) Rules, no review proceedings shall be commenced until after expiry of the period of limitation prescribed for appeal or disposal of appeal where any such appeal has been preferred. 4. Supporting the order impugned it has been argued by the! counsel for the respondents that as the Inspector General of Police found the penalty imposed on the petitioner to be inadequate, he is, wholly justified in enhancing the same. He submits that present is not a case where no notice was given to the petitioner before passing the impugned order. He submits that the petitioner was given due notice on 14.12.2009 which was even replied to by him and thus he cannot say that principle of natural justice has not been complied with in the case. He however very fairly admits that on 14.12.2009 vide letter No. Kra/Mni/SirNari.Steno/1313/09 the order of Superintendent of Police dted 201 1 .2009 wa set asid n view of the arguments advanced by the parties, the following legal question emrges for adjudication of the case: i hether uo motu revsional por under lause (1) of regultion 270 of the Chhattisgarh Police Regultion can be exercised b revising uthority during the ndency f statutory appeal prfered by delinquent petitioer uder cluse 263 of the regulation or efore the expiry of period of limitation prescribed for prefeing or it can be exeris t y ime. ii) hethe nrested party is etitled for opportunity of hearing as contempt under clause 4 of reulation 20 of Chhattisgarh Polce Regulation before varying o setting aside the order by the revising authority. 'iu 6. Before advertin to he rival subission of the l for the arties it would b roa to ref to Regulation 213 of .G. Police Regulation (hereinafter refrred to as “Regulation") which dl with the applicability of the prosiof'All India Service iscipline ad Appeal les, 1955 ad Civi Srices (Classification, Cotr and Appeal) Rules, with regard t punishment and appeal. aid Regultion reads as a s e. 5. l e ) W s i we c a a y a pe o er n n a b rr appeal ced a an t Wr ite n laed g 7 'i r g t ms counse p e phtble er C e eas vinsVo D n Ru n l ev nol o S a unden “213 - The rules contained in the All lndia Service Discipline and Appeal Rules, 1955 and Civil Services (Classihcation, Control and Appeal) Rules, will regulate the punishment of .the and appeals from officers belonging to the Indian Police Service and the State Police Service respectively.“ Regulation 263 deals with limitation for tiling appeal by the delinquent against the order of punishment. The Regulation 270 confers power‘ upon the Superior authority to exercise power of revision suo motu or to‘l l M ~ g1. vary or reverse the finding of the subordinate authority after giving opportunity of hearing to the delinquent. Reguiation 270 reads thus: “270:- (1) Every order of 'punishrhent of exoneration, whether original and appeilate shall be liable to are vision suo motu by any authority superior to the authority making the order. ‘ (2) Every appellate order by a final appeate 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. Explanation:— For the purposes of this clause, the expression “final appellate authority” means the final authority empowered to hear angappeal under police regulation 262. » ‘ . (3) The provisions of Regulations 266, 267, 268 and 271 shall, as nearly as may be, apply to an application for revision. (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 or the taking of further evidence in the case: Provided that it shall not vary or_reverse any order unless notice has been served on the parties interested and opportunity given to them for being heard." ‘1“ 7. It is relevant to note here that there is no provision of review in the Regulation nor there is any provision of revision in C.G. Civil Services (Classification, Control and Appeal) Rules, 1966 (in short the Rules). Sub Rule 2 of the Rule 29 imposes a restriction on a reviewing authority as under:- Sub Rule 2 of the Rule 29 imposes a restriction on a reviewing authority as under: ”Rule 29 (2) No proceeding for review shall be commenced until after (i) the expiry of the period of limitation for an appeal, or (ii) the disposal of the appeal where any such appeal has been preferred.” , In the case in hand, the interpretation and construction of Regulation ‘ 270 is necessary‘for disposing of the petition. lt appears from Clause l (1) of Regulation 270 that no time period or limitation is provided for a J‘ superior authority for exercising the power of revision suo motu against ‘l I - ’ the Order passed by subordinate officer. Similarly Regulation 270 (2)‘l ll “é_ also does not provide any Iimitation for filing revision by an aggrieved person against the order passed by finai appellate authority. In the case of lbrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy and others reported in 2003 Vol. VII SCC 667 it has been held by the Supreme Court as under: “10. This Court in recent decision in D. Saibaba v. Bar Council of India after referring and quoting passages from Justice G.P. Singh’s Principles of Statutory Interpretation observed that: (SCC p. 193, para 18) ‘18. Reading word for word ‘and assigning a literal meaning to section 48-AA would lead to absurdity, futility and to such consequences as Parliament could have never intended. The provision ¥ has an ambiguity assignthe provision a meaning and so read it as would give life to an othenivise lifeless letter and enable the power of review conferred thereby being meaningfully availed and effectively exercised.‘ 11. In Principles of Statutory Interpretation (8th Edn, 2001) the author has stated thus: lt may look somewhat paradoxical that plain meaning rule is not plain and requires some explanation. The rule, that plain words require no construction, starts with the premise that the words are plain, which is itself a conclusion reached after construing the words. It is not possible to decide whether certain words are plain or ambiguous unless they are studied in their context and construed. The author has stated again as under: ‘ln selecting out of different interpretations, the court will adopt that which is just, reasonable, and sensible rather than that which is none of those things; as it may be presumed that the legislature should have used the word in that interpretation which least offends our sense of justice. * 12. The learned Single Judge has referred to and relied on various decisions including the decisions of this Court as to how the use of the words “at any time” in sub section (4) of the Section 50-B of the Act should be understood. In the impugned order the Division Bench of the High Court approves and affirms the decision of the learned Single Judge. Where a statute provides any suo motu power. of revision without prescribing any period of limitation, the power must be exercised within a reasonable time and what is “reasonable time" has to b’e determined on facts of each case." -‘“ I 8. Coming to the exercise of revisional jurisdiction suo motu under Clause (1) of Regulation 270 the revisional authority could not have , _7' invoked suo motu revisional power before expiry of limitation prescribed under Regulation. 263 for filing appeal by a deiinquent empioyee othenivise the purpose of providing remedy of appeal would become redundant. If revisional power is exercised before expiry of” period of limitation for tiling appeal, that would deprive a delinquent employee from his statutory right of appeal conferred by law. Even Clause (2) of Regulation 270 does not provide for limitation for making an application by the aggrieved person against appellate order or by final appellate authority. In this case the superior authority, the respondent No.2 has set aside the order passed by respondent No.3 without giving opportunity of hearing before the expiry of limitation for tiling appeal by the petitioner. The provision of Clause (1) of Regulation 270 is ambiguous and therefore a harmonious construction to regulate the suo motu exercise of revisional power by revisional authority is required. No exceptional circumstances have been shown by the respondents in their return that there was an urgency or exigency in the interest of State or public that suo motu revisional power was invoked by the respondent No.2 in a hurried manner. The department or the aggrieved party has been conferred with power of appeal and revision which the respondents had not availed. There is a vast difference between existence of power under a statute and. the manner of exercise of that power. Since the Regulation is silent on the point of statutory time frame for invoking jurisdiction for exercise of revisional power, therefore, the provision of Rule 29 (2) of the Rules can be referred for interpretation of the provision of Clause (1) of Regulation 270 of the Regulation. This Court has referred to the decision rendered (in case of Soniram Dhruv v. State of M.P. & others in W.P. (S) 1367/2007 rendered on 5.2.2010, paragraph No. (10) in case of J.K.S. Rana v. State of C.G. and others W.P. No. 4758/2005 rendered on 3.5.2010 holding as under: “Clause ‘213 of the Chhattisgarh Police Regulations provides that the provisions contained in C.G. Civil Services (Classification, Control and Appeal) Rules police 196/6 shall officers. regulate lt has penalty been held and appeal by the High in respect Court of of MadhyajPradesh in the matter of Krishna Narayan "5“ _g._ Shivpyare Dixit v. State of M.P. and others, 1985 MPLJ, 343 that regulation 213 does not exclude the operation of M.P, Civil Services (Classification, Control and Appeal) Rules 1966. As no specific provisions had been made in Poiice 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 and Appeal) Rules 1966 prescribing mode and manner of exercise of appellate power by the Appellate Authority are applicable.” Thus the provision of Rule 29 (2) of the Rules can be referred for interpretation for manner and timeframe for exercise of suo motu revisional power by revisional authority. The Regulation 263 provides for two months time to file before the State Government and one month time for filing appeal before any other authority. Rule 29 (2) puts limitation for exercise of power of review before expiry of the period of appeal and if appeal is filed after its disposal. Taking recourse to harmonious interpretation of the provision of Clause (1) of Regulation 270 regarding manner and reasonable time for exercise of suo motu revisional power would show that the reasonable time for exercise of revisional jurisdiction by the revisional authority shall be after the expiry of the period of limitation for filing appeal and when an appeal is filed after disposal of appeal, unless exceptional circumstances are not shown by the authority for suo motu exercise of power despite having remedy of appeal by the department and burden will Iie upon the authority to show the exercise of exceptional circumstances. Re-Iegal issue no. 2: Clause 4 of Regulation 270 is goVerned by the proviso appended to it and it provides that “it shall not vary or reverse any order unless notice has been served on the parties interested and opportunity given to them for being heard.” lt is relevant to mention here that legislature has used the word ‘shall’ in the above proviso, which generally implies the mandatory nature of the procedure ‘ 1 and the proviso‘ also talks about giving of notice and opportunity of ‘ hearing to the parties interested for being heard before varying any order by the revisional authority and same analogy would apply in case i of exercise of suo motu revisional power by an authority. In Principles ; ~c"_ of Statutory Interpretation by G.P. Singh (10th Edition 2006) the author has stated at page 378: “the use of word “shall” arises presumption that the particular provision is imperative; but this prima facie inference may be rebuffed by other considerations such as object and scope of the enactment and the consequences flowing from such construction; " The legislature has used the word ‘shall’ in the proviso, which is mandatory and not directory for compliance of the principies of natural justice in departmental proceedings the reason being if some order is being passed against a delinquent employee by a superior authority, without hearing him on his back then he would suffer irreparably as his fundamental right of hearing as contemplated under Article 14 and 21 of the Constitution of lndia would be infringed. The right of hearing is corollary of rule of law and it emanates from Article 14 of the Constitution of India. ‘Article 21 postulates passing of order according to procedure established under law. There is procedure for passing order after giving - (1) notice and (2) opportunity of hearing as contemplated under Clause (4) of Regulation 270 and no one can be subjected to discriminatory treatment in violation of the above Regulation. Therefore, such just, fair and reasonable procedure can not be deviated from or frustrated by superior authority in their whims and caprices since the question of punishment involving civil consequences are involved. lf it is taken as directory then the purpose of the clause (4) of Regulation 270 would be frustrated as the authority would pass any order against a delinquent employee on his back and thereafter hear him for merely completing the formality. The notice Annexure P/10 bearing no. 1314/2009 issued by the respondent no. 2 shows that it was only a notice to show cause for filing reply and there was no offer of opportunity of hearing. Though the counsel for petitioner has cited i judgment rendered by M.P. State Administrative Tribunal reported in, 1991 MPLSR 396 (KomalSingh Vs. State of M.P.) which has neither a 1 ‘ persuasive value nor an authority for deciding the case. But the logic of learned tribunal in interpretation of Regulation 270 (4) of the Regulation ‘ appears to be reasonable as “show cause notice was thus insufficient i and not faithful compliance of the mandatory provisions of the proviso j to P;R. 270(4).” ln this case also, it appears from impugned order P/1 ()v h/o__ dated 11.1.2000, that the respondent no. 2 vide order no. 1313/2009 dated 14 12 2009 had set aside the order imposing punishment inflicted 'by the discrplmary authority upon the petitioner vide order dated 20 11 2009 after caning the report and record from the respondent no 3 on the back of the petitioner Without givmg him opportunity of hearing thereafter he had issued show cause notice. Show cause notice Annexure P/10 was issued for enhancement of punishment by the respondent No. 2 to the petitioner. There is apparentiy flagrant violation of the provisions of clause 4 of the Regulation 270. CONCLUSIONS:- h " V: On the basis of aforesaid discussions, the conclusions of this Court are -W as under:- A. The suo motu revisional power under clause (i) of 270 Chhattisgarh Police Regulation exercised by the respondent No 2 revrsmg the order dated 20 11 2009 before the disposal of statutory appeal/during the pendency of statutory appeal preferred by petitioner under clause 263 of the regulation is unsustainable in law The reVismg authority could have awaited the deCI5ion of statutory appeal preferred by petitioner against the order of penalty before exerCIsmg the suo motu reVIsional power enhancmg the punishment awarded to the petitioner B. That there is no exceptional circumstances shown or established in the present case warranting exercise of suo motu revisional power under clause 270 (1) of regulation before the expiry of period of limitation or during pendency of the appeal preferred by the delinquent petitioner. C. The Respondent No 2lrevising authority while exercising suo motu reVisional power under clause 270 (1) of regulation failed to 1 observe the mandatory requirement of giVing opportunity ofi hearing to the interested party as prowded in clause 4 ofl regulation as reyismg 270 authority before has setting not afforded aSide the an under reasonable dated 20 opportunity' 11 2009i ‘ of hearing to the petitioner, before passing the impugned order dated 10.01 .2010 setting aside the order dated 20.1 1 .2009. After patiently hearing the arguments advanced by counsel for 9. both the sides and thoroughly going through the documents placed by them it is manifest that the respondent No.2 had already formed its opinion for enhancing the penalty of stoppage of one increment imposed on the petitioner by respondent No.3. The record shows that against the order of penalty passed by respondent No.3 - Superintendent of Police the petitioner had preferred the appeal before respondent No.2 — Inspector General of Police on 15.12.2009 but surprisingly the order appealed was already set aside by respondent No.2 on 14.12.2009 itself i.e. a day before the appeal was presented before it and on the same day vide Annexure P-10 a notice was issued by respondent No.2 asking him to offer his explanation as to why disciplinary action be not taken against him and ultimately order impugned dated 11.1 .2010 came to be issued reducing the petitioner in rank to Assistant