^siW-^'^-S.^W- ,<T^> BEFORE THE M.P.STATE ADM1NISTRATIVE TRIBUNAL S JABALPUR ).A< s OF 1996 Applicant Soniram Dhnrv S/o Gaiiguram Gond aged about , Years- Village Palayd. Post Tllcari (Julum) ,P<S«Abhanpur, Ralpur(M^P^)^. Versua Respondents 1 s 1» State ^of Madhya Pradesh through the Secretary(H©me) Police Gewt^ of ^M • P^Bhopal o. 2^ The Director General o£ Police Home Department^ Govt^ of M<,P^ Bhopal.® 3^ The Inspector ^eneral of Pollce Bhilai Range^ Bhilax^ 4<» The Deputy Inspector General of Police Bastar Range^Jagdalpur ©±stt^Bastar<i 5^i The Superintendent of Police Jadgalpur^ ©istt^Bastar^ 6» ^he Sub Divisional Of£leer(Pollce) Kanker» Distt^Bastar® ApplicatloB uader sectloa 19 of the <^<3ministrative - Tribunal Act< 1985 ^:'^; .^^\ !^ HIGILCOURT^F CHHATTISGARH, BILASPUR SINGLE BENCH : HON'BLE SHR! MANINDRA MOHAN SH^IVASTAVA,J. Writ Petition (Sl No. 1367/200^ PETITIONER Soniram Dhruv Versus RESPONDENTS State of Madhya Pradesh and two others ORDER ^ POST ON ^ 'FEBRURARY, 2010 Sd/- Manindra Mohan Shrivastava Jude ^'\ ^:"^^ft II '^^ i 1 i %w^^ HIGH CQURT OF CHHATTISGARH : BILASPUR @ SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. PETITIONER RESPONDENTS Writ Petition (S) No. 1367/2005 Soniram Dhruv Versus State of Madhya Pradesh and others Appearance: Shri Prafull Bharat, counsel for the petitioner. Shri Ajit Singh, Panel Lawyer for the State/respondents. ORDER (Passed on y .02.2010) 1. The petitioner has filed this petition assailing the order dated 27.7.1990 (Annexure P-6) by which a penalty ofdismissal from ser^ices has been imposed upon him; order dated 13.2< 1991 (Annexure P-8) by which appeal against the order of dismissal passed by the Discipline Authority has been dismissed; order dated 7.6.1991 (Annexure P-9) by which mercy petition preferred by the petitioner has been dismissed by the Inspector General of Police, Bhilai Zone, Bhilai; order dated 5.6.1992 (Annexure A-10) by which Director General of Police, P.H.Q., Bhopal dismissed the petition against the earlier orders referred to above and communication dated 7.3.1996 (Annexure P-11) regarding dismissal of review petition of the petitioner by the Inspector General of Police, Bhilai Zone, Bhilai. 2. Petitioner while working as Constable in the Police Department was transferred to Bhanupratappu^ in the year 1984. He was also assigned duties in the Treasury Section of the Collectorate. In relation to an -2- ,-;.' v'.:'.--" ...^' IWNIII r iiN incident which happened on 8th January, 1990, alleging misconduct on the part of the petitioner, a charge sheet was issued on 14.2.1990 vide Annexure R-3. Charges leveled against the petitioner were that -on 8.1.1990 while he was on duty at 22 to 24 hrs. as Treasury Guard, without proper notice in the police station or to the change Guard went to the house of one Kanhaiya, resident of Chichgaon and misbehaved with his daughter Miss Geetabai and thereby committed a misconduct violating the departmental rules, tarnishing the image of Police Department. The petitioner denied the allegation and reply was submitted by him. After inquiry, an inquiry report (Annexure P-4) was prepared by the Inquiry Officer finding charges leveled against the petitioner proved on the basis of evidence adduced by the prosecution during the course of inquiry. Upon submission of the report to the Disciplinary Authority i.e. Superintendent of Police, a show cause notice (Annexure P-5) was issued proposing imposition of penalty of dismissal from service. It is stated that.after receiving reply to the show cause notice, Disciplinary Authority imposed penalty of dismissal from services vide order dated 27.7.1990 (Annexure P-6). Aggrieved by the order of Superintendent of Police, an appeal was preferred to Dy. Inspector General of Police, Bastar vide Annexure P-7. It is stated that the Appellate Authority without hearing the petitioner rejected his appeal vide order dated 13.2.2001 (Annexure P-8). Thereafter a second appeal was preferred before Inspector General of Police, Bhilai Zone, Bhilai, who also without giving any opportunity of hearing, rejected the appeal vide order ofAnnexure P-9 dated 7.6.1991. Petitioner thereafter filed a review petition before the Director General of Police, Bhopal, who also rejected the same vide order of Annexure P-10 dated 5.6.1992. Thereafter, the petitioner submitted a review petition under Regulation ..-,;l;y%. ~^ ^ ^' ^^^.,..^-.^ - ^ 1t:la^! ^£y ^?^^-^ -3- 270 (2) of the Police Regulations before the 3rd respondent-Inspector General of Police, Bhilai Range, Bhilai, which was also rejected on 14.2.1996 and the same was communicated to the petitioner vide letter dated7.3.11996 (Annexure P-11). 3. In the return filed by the respondents opposing the reliefs prayed by the petitioner, it has been stated that while the petitioner was working as Constable and was assigned duty (Sentry) at Bhanuprataur Sub- Treasury on 8.1.1990 at 22 to 24 hrs. without giving the proper information and without taking permission from his Guard Commander and from the In-chare Police Station, he proceeded to village Chichgaon for his personal work and thereby absented himself from duty and further at Chichgaon misbehaved with Miss Geeta Bai thereby violating Police Regulations and committed misconduct. This led to issuance of charge sheet and the petitioner was informed in detail the allegation against him. He was however given time to file his reply. As the reply was not found satisfactory, an inquiry was conducted in which full opportunity was provided to the petitioner and the petitioner was also provided all the relevant documents. He was also provided opportunity of adducing defence. It has been averred that inquiry was conducted after following complete procedure mentioned in the Chhattisgarh Civil Services (Classification, Control 85 Appeal) Rules, 1966 (hereinafter refereed to as 'Rules of 1966') as also in the Police Regulations. The Inquiry Officer i.e. Sub Divisional Officer(P) Kanker submitted his report on 16.6.1990 wherein charges No. 1 & 2 leveled against the petitioner were found fully proved. On the basis of the said report show cause notice was issued and then penalty was imposed. It has also been submitted that the Appeal, Review, Mercy Petition of the petitioner were rejected after full consideration. According to 'x^^. ""^ '%^ % s^s^. ^ ::::?^ -4- respondents the petitioner has admitted that he went to Chichgaon for purchasing cot for personal use even before being relieved and he did not obtain prior permission nor informed to the Guard Command'er and the In-charge of Police Station. Respondents have justified the order passed by the Disciplinary Authority and confirmed by the Higher Authorities stating that a gross misconduct was committed by the petitioner by which the image of the Department were tarnished and therefore after affording him full opportunity of hearing and adducing defence in his case, in a detailed departmental inquiry, charges having been found proved, he was dismissed from ser^ices. 4. Petitioner has assailed the order of imposition of penalty and confirmation of those orders by Higher Authorities mainly on the ground that the order of dismissal and order of penalty by imposing extreme penalty of dismissal from service has been passed without proper consideration of evidence on record, particularly deposition of one Constable- Domarnath. It has also been argued that looking to the nature of allegations against the petitioner with regard to alleged misbehavior with Miss Geeta, as no criminal prosecution was launched for the said allegations, the same being allegation of commission of an offence, could not be inquired into in a departmental inquiry. It has also been urged that what has been alleged in the charge sheet has not been proved whereas what has been found proved was not specifically made a charge against him in the charge sheet. It has also been stated that inquiry was not proceeded in accordance with law and reasonable opportunity was not afforded to the petitioner and he was also not informed about his right of engaging defence assistant which was necessary to be done by the Inquiry Officer himself as per Govt. instructions. It has been further contended that the evidence has not -5- ^" ^' •^' ^ been analyzed and evidence brought in defence has not been considered and there was no application of mind therefore, the entire action and the order impugned suffers from prejudice. It is further submitted that while imposing punishment of dismissal, the servrice record of the petitioner should have been taken into consideration. The petitioner was never imposed with any punishment and his record had been throughout good and -thus imposing extreme penalty was unwarranted. 5. Petitioner during the course of argument further submitted that the petitioner having preferred a statutory appeal as provided under the Rules was entitled for consideration of his appeal by application of mind with respect to the ground raised by him in his appeal against the order of punishment. It is further submitted that the Rules enjoin upon the Appellate Authority, a statutory obligations to consider the appeal on various parameters which has not been done. 6. Learned counsel for the respondents submits that the scope of interference under Article 226/227 of the Constitution of India with regard to examination in the matter of departmental inquiry is limited. He submits that the Writ Court is not an Appellate Authority to reassess evidence available on record. According to him once it is found that the inquiry has been held in accordance with the prescribed procedure and there is evidence on record to arrive at the conclusion of guilt, the same could not be interfered with except in the cases of perversity or violation of principle of natural justice or violation of statutory rules causing prejudice to the delinquent employee. Further submission is that merely because criminal case was not launched, it does not take away the power of the Disciplinary Authority to hold departmental inquiry on allegations of misconduct. It is further -6- n submitted that after detailed inquiry, wherein proper opportunity of hearing was afforded to the petitioner, there is ovenvhelming evidence on record to sustain the finding of guilt and it could not be said to be a case of no evidence, He also submits that under Article 227 of the Constitution of India, this Court may not substitute his opinion with regard to quantum of punishment unless it is established that the punishment is grossly disproportionate to the gravity of misconduct. The petitioner was performing duty in Police Force and was entrusted duty as Treasury Guard yet he not only absented from duty without information but also went to another village and misbehaved with a girl and therefore imposition of penalty of dismissal from ser^ice is quite commensurate to the gravity of misconduct. 7. On the charges leveled against the petitioner vide charge- sheet of Annexure P-3 dated 14.2.1990, inquiry was held against the petitioner and the Inquiry Officer vide his inquiry report, Ex.P-4 held the charges proved. The Disciplinary Authority vide impugned order dated 27.7.1990 (Annex. P-6 ) imposed punishment ofdismissal from service, Against the order of punishment petitioner preferred an appeal vide Annexure P-7. A perusal of memo of appeal filed by the petitioner would show that petitioner raised following grounds in appeal. 1. That the inquiry officer submitted his report by considering only the case of the prosecution without considering the evidence brought in defence by the petitioner and without considering arguments raised by the petitioner. 2. On the issue of punishment, Superintendent of Police violated Rule 226 of the Police Regulations and without hearing the petitioner imposed major penalty. 3. That during the course of inquiry, the Inquiry Officer did not grant proper opportunity to the petitioner to cross-examine prosecution witnesses. -7- 4. That the petitioner had given Rs.50/- for preparing a cot to the father of the complainant and when the petitioner demanded back the amount as the cot was not prepared, to avoid re-payment false complaint was lodged. 5. That from the statements of defence witness Domarnath, the charges cannot be said to have been proved and extremely harsh punishment has been imposed. 6. That the petitioner has been faithfully serving in the Police Department and in his first inquiry against any misconduct, such harsh punishment ought not to have been imposed. 7. That the petitioner being the only earning member of the family and, lastly- 8. There is dearth of employment and also that the petitioner has been subjected to conspiracy whereas in respect of complaint , the detailed submission has been made by Ledhuram and Tijuram who are independent witnesses of the village. 8. A perusal of the order passed by the Appellate Authority dated 13.2.1991 (Annexure P-8) it is found that the only consideration made by the Appellate Authority is as below:- "-BTF^T^T ^ v3T^Tt^?T ^T^TT fc|^||<u| ^ ^q~^T ^T ^FT f^F^ TK ^ f^ OT^TTsff SKT ^H 'BT^ ^ ^TT ^ "-^TT ^2T H^T ^T f^T Trar t ^ ^FT^ [ci^<^ ^FTT^ TTSf ^3^|<|q|< ^T ^ft ^TT ^ 1 ^PFT ^sft'^T^ ^KT <3^R^ ^t ;3^ ^<l-c|<ul ^ "^N'ST ^ ^t TTf ^F?TT TPrriT?T t ^FI^ f^ft ^F^K ^ ^Pft ^TRT ^ ^f^T ^t <^^^ai <B:^T: gi^RT -3Tsft?^ 'j1jl^dl^< SKT '3TKT(ft ^ 5T5^T ^TF ^" ^ST^ ^ ^?TT ^ST^RT T^t ^T^ft' t ^T^TT ^Pft^T P<«-<-1 ^ ^TKft- t | 9. A perusal of the order passed on 7th June, 1991 (Annexure P-9) on mercy petition shows that the petition has been dismissed by holding that the inquiry is based on facts and petitioner has been punished on sequence of events proved by witnesses examined during inquiry. It has been recorded that the appellant admitted that he had gone to '•:^> ,^: -8- \ village Chichgaon informing his colleague, Constable- Domarnath. Domarnath is not in-charge of police station and leaving place of duty with the consent of said Domarnath does not constitute valid permission. It has been further recorded that all the prosecution witnesses during inquiry proceeding have admitted that the petitioner behaved in objectionable manner with Miss Geeta as such he deservres punishment. From the misconduct of the petitioner, the reputation of Police Force has been tarnished. Looking to the gravity of allegation there is no scope to mitigate the punishment, after considering the entire aspects, mercy petition is dismissed. A further petition filed before the Director General of Police, Madhya Pradesh Bhopal, vide order dated 5,6.1992 (Annexure P-10), the same was also dismissed by recoding that the records have been perused; no substantial ground has been raised so as to warrant setting aside the order or reducing punishment and therefore the same is dismissed. 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 of police officers. It has been held by the High Court of Madhya Pradesh in the matter of Krishna Narayan Shivpyare Dbsit Vs. 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 prescnbe 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. -9- 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:- "(l) 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 failure ofjustice; (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- (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 of the case/7 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. %. -10- 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 ofjustice; 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 of the 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 pf Delhi and others, 1977 (11 SCC 472; Divisional Forest Officer, Kothaeudem 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 '::'fci^^."\ s -11- 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 Rain 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 similar to 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 : "It is clear upon the terms 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 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 -12- 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 : "(l) In terms of Rule 22(2) of the Railways Servants (Discipline &Appeal) Rules, 1968, the Railway Board havecarefully considered your appeal against the orders of the General Manager, Northern Railway, New Delhi imposing on you the penalty of removal from service and have observed as under : (a) by the evidence on record, the findings of the disciplinary authority are warranted ; and (b) the penalty of removal 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 ser^ice for a single lapse 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 servrice, may not deserve such a harsh 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." -13- 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. Municipal Corporation of Delhi &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 shall 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 inthe 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) ofthe 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 Ser^ices (Classification, Control & Appeal) Rules, 1965. R. 22(2) provides that in the case of an appeal against an order