1^-J^' TM THR HIGH CniTRT np .TTTnTpATTTRE' PI-THATTTCsnARI-T AT BILASPUR W.P.NO. 2004 Petitioner Sheetal Das Mahant S/o Late Shri Davalu Das Mahant. Aged about 55 years, Ex-§ubInspector (Police), R./o ViUa.ae 8s Post Chaal, Via-Kharsia, Dist : Raiearh- (C.G.) Versu s Respondents ^^ ^^w (^ :/-''J,Al.-- ^A: ^- ..-^^^ •y^" <?'y^ ..*-'*-'' ^-i 1. 2. 3. 4. 5. State of Chhattisearh Through the Chief Secretarv Mantralava, Horae Deoartraent, D. K. S, .Bhawan, Raipur-fC.G.) Dirftff'nr Oflnera1 nf Pnline Chhattisearh, Raipur-fC.G.) Inspector General of Police, Raipur-IC.G.) Dv.Inspector General, Bilaspur-fC.G.) Suoerintending of Police, Bilaspur-IC.G.) WRIT PETITIQN UNDER ARTICLE 226 /227 OF THE CONST1TUTION OF INDIA •f^ ,€f /" :'\ HISH COURT OF CHHATnSGARH AT BILASPUR Writ Petttioa Wo. 692 of 2004 Petitioner Sheetal Das Mahant Versus Respondents State of Chhattisgarh and othera Post. for oris-r on ORth .Jamiaiy, 2(X)7. Sd/- satish K- Agnttoy Judge HI6H CCTJRT OF CHHATHS&ARH AT BILASPUR p. Petitioner Versus Respondents State of Chhatl-ist others SB: Hon'ble Mr. Justice Satish K. Agnihotr!. J Shri ghtirat Rajput, Advoca-te for the petitioner. Shri 5umesh BajaJ, Sovemment ^dyocate for the resj <?R OER (Passed on this 5day of Jcnuary. 2007) 1. By this petition, the petitioner has chullenged the validit/ of the order dated 27,12.1997 (Annexure P/5) passed by the Superintendent of Police, Bitaspur and the order dated 1.4.2002 (Annexure P/12) passed by the Director Seneral of Police, Raipur. 2. The petitioner was posted as Assistant Sub Inspector at Police Station Shakti Hall - Seepat. The petitioner was issued o show couse notice with charge sheet on 30.11.1997 (Annexure P/3) as under;- "1- v^ ^" v^s. W^f ^ -^ -w^sp ^f^r TT«T ^t si^qf^rRr ^f ^ra 414'ttt<t ^F? 1^*TpfP( ft^^f? ^t srai^RT ^SWI 2- Vf ^<flA<H ^ ^lld^< ^raret' SRT ^R^TT ^a^ ^ ?yR %^ g^W ^f ^E^WT ITE[ qt+cMI<rlI ^' ft^RtT ^ ^ q WTOS( yR.d ?t^ ^t •'pTse g%q ^ ^ «rK i!ft ftWTT^^OT? 3EqWT M'^-y'l ^ ^^ 3PT^ <t»^o2t(^^<y^l ^T irf^TO ^ ^? aii'il^yT ^pt WT ^^ •¥T VW i 3- ^q^ V^ ?R 3Bq4t aTT^OT qit ^ff^reT ^ qft^T ^' ^TRR ^::R(T ^' 1SfSRT ^T4^l€r ^ fff^ TRRT STRIrn Pl-S^ri ?t^ ^r aff^ER ^TTI " 3. TTie petitioner submitt-ed his reply to the charge sheet on 9.12.1997 (Annenire P/4). One Shri N. P. Singh, 5ub Divisionol Officer (Police). Mungeli was oppointed as Enquir^' Officer and the enquiry was properly conducted. Ali the charges mentioned cbove were found proved in the enquiry. The Disciplinary' Authorit/ i.e. the Superintendent of Police, Bilaspur by his order dated 27.12.1997 (Annexure P/5) passed an order of punishment withholding one increment with cumuhtive effect for one year. 4. Bein9 ag9rieved, the petitioner filed an appeal before the Deput^' Inspector Senera! of Police, Bihspur Division, BiSaspur on 10.2.1998 (Annexure P/6). Tlie Deputy Inspector Senera! of Police by his letter dated 14.9.i998 (Annexure P/7) hwing considered all -tfie points roised in the appeal ond the enquiry report, he!d that the departmenta! enquiry VMS heid in accordance with law after affording sufficient opportunity of hearing to the petitioner. The appeliate authority accordingly M ^. ' ./ i. Being aggrieved, the petitioner ffted o revision (r'eview) to the Director Seneraf of Police, Mfldhya Pradesh, Bhopal on 12.9.1999 (Annexure P/8). Tha birector fieneral of Potice by his order dated 5.6.1999 (Annexure P/9) dismissed the revision (review) hoiding that the punishment awarded appears to be minor in viev» of the gpavity of the offence. The case of the petitioner be revised. Accordingly, the show couse notice dated 5.6.1999 (Annexure P/10) was issued as to why the petitioner be not terminated from service in view of the 9ravity of the offence committed by him. It appears that the Director fieneral of Police exercised his powers in occordance with the Regulation 270 of the M. P. Police Regulations (for short 'the Police Regulations'). framed under the provisions of the Indian Police Act, 1861. 6. Jhe. petitioner submitted his detoiled reply (Annexure P/11). The Oirector Seneral of Police after having considered •rfie repty of the petitioner in exercise of the powers under the Regulation 270 (4) of the Police Regulations, passed the order dated 1.4.2002 (Annexure P/12) of compulsory retirement against the petitioner. 7. The petitioner has filed this petition impugning the order dated order dated 27.12.1997 (Annexure P/5) whereby a minor punishment of withholding of one increment with cumulotive effect for one year was pasad nnd the order dated 1.4.200S ! ' -/-' (Annexure P/12), whereby the petitioner was retired from service compuisoriiy. 8. The main ground of challenge before this Court is thot ttie petitioner was not granted an opporhjnity of personai hearing before the impugned order dated 1.4.2002 wos passed. It was further contended that the Director Seneral of Polics has no power to take suo motu revision of the order pcssed by cn au'thority subordinate to him. Learned counsel for 1+ie petitioner also contended that the order impugned was disproportionate to the alteged misconduct comraitted by the petitioner. It is not the case of the petitioner tha* there was any irregularity in the departmental enquiry or the petitloner was not given opportunity of hearing, as the ifflpugned order was passed afte" considering the reply of the petitioner to tiie show cause notice issued by tiie Director Senerat of Police on 5.6.1999. 9. Learned counse! for the respondents, per contra, would submit that it is wei! sett-led principle of low that this Court would exercise powers of judicial review only to see. irregularity, perversity and illegality in the process of decision making, not in the decision itself. It was further contended that the Regulation 270 of tiie Potice Regulations clearly provides for enhancement of the punishment by any authority superior to the au+hori-ly making the order. In the present case the order imposing minor !' ^,/ l/r' punishment of withhofding one increment with cumulative effect for one year was passed by the Superintendent of Police and the same was confirmed by the Deput/ Inspector 5enerot of Police in appeaf. The Oirector Senerat of Police, who is superior officer to the Superintendent of Pofice and Deputy Inspector Seneral of Police, has power to take revision suo mo1u. In the present cose, it was found that the order imposed on ths petitioner, keeping in view the gravity' of the misconduct committed by him, was too iess and minor, hence the petitioner deserves a mojor punishment i.e. dismissal from service. Thus, the Director Senerai of Police after having considered the reply of the petitioner modified the proposed order of punishment and passed the order* of compulsory retirement from service. 10.1 have heard learned counsef for the parties and perused the 11. For proper appreciation of the controversy, it is necessary to quote tfie Regulation 270 which reads as under:- "270. [(1) Every order of punishment of exoneratten, whether ori9inal or oppellate shal! be liable to revision sou- motu by any authority aiperior to the authorit/ making the order]. (2) Every appettate order by a final appellate authority shoil be liabie to revision by such fina! appeltate authority, on application made in that behalf by the person against whom 1+ie order has been possed. e le Exptoinotion.- For the purposes of this ciause, expressmn "final appellate authority" meons the authority empowered to hear an oppeal under Police Regutetion 262. (3) The provisions of ftegulations 266. 267, 258 and 27j shaft, as neariy as may be, apply to an appiication foi revision. [(4) The revising authority may for- reasons to be in writing exonente or may remit, yary or enhonce punishment imposed or moy order a fresh enquiry or takinq of fur'ttier evidence in the case : Provided thut it shall not vary or reverse any order uniess notice has been served on 1+ie parties interested and opportunity given to them for bein9 heard]." 12. It is not the case of the petitioner thot the proper hearing was not sfforded to the petitioner in the enquiry. The petitioner hcs not challenged the enquiry report on ony basis that it wcs perverse or tiie charges have been found proved on the basis of no evidence or there was any proceduroi irreguiarity. As such, the reasonabfe opportunity, as contemplated by Articte 311 (2) of the Constitution of India, in the case of the enquiry was 'm accordance with the principies of the natural justice. The contention of the petitioner is 1+iat 1+ie Director Senera! of Police ought to have afforded cin opporturiity of hearing to the petitioner. The Director Senerol of Police accepted the enquiry report wherein the charges levelled a^ainst the petitioner was found proved. Only in the question of ifflposition of punishment the Oirector Senera! of Pofice did not agree with the order passed by the dtecipiinary authority as also confirmed by the cppellate authority'. The requirement for varying or enhancing the punishment is govemed by the provisions of the Reguhtion 270 of the Potice Regutations. The proviso to Regulation 270(4} that the order shatl not be varied or reversed unless a notice K served on the party interested or opportunity of being heard is given to him. In the case in hand the opportunity of being heard was given to the petitioner by issuing show cause notice and the Submission of the respondents merits petitioner had submitte.d a detailed reply. Heoring does not mean a personat hearing. aceeptcsnce. 13. The Supreme Couri' in Wfd antttksr observsd that it is a fundam«<tclruia of la.w •that no decision must be taken which witl affect the rights of any person without first giving him an opportunity of putting forward his cose. The main requirements of fair hearing are (i) a person must know the case that he 'ss to meet; (ii} he must have ar adequate opporhinity of raeeting that case. 14. This dictum laid down by the Supreme Court has been fo!!owed in various decisions. In Canara Bank and others Vs. Debasis Oas and othws , the Supreme Court has expiained the vas'ious ^' '(W^- i / aspects of principtes of naturoS justice i.e. hearing before passing adverse order, as under; 21. How then have the principies of naturai justice been interpreted in the courts and within whot Imits are •Hiey to be confined? Over the yeors by o process of judicial interpretation two rules have been evotved ess representing the principles of natural justice in judicial process, inctuding therein quasi-judicial and administrative process. They constituted •rfie basic elements of o fair hearing, having their roots in the innate sense of man for fair ptay and justice which is not "Hie perverse of any part'icular race or country but is shared in common by all men. The first "ule is " nemo Judex in cauw sua " or "nemo debet esse Judex in propria causa sua" as stated in Earl of Derby's cose that is. "no man shall be a judge in h'ss own cause". Coke used the form "aliguis non debet esse Jude>; in propria causa. quia non potesf esse Juckx et pars" (Co. Litt. 1418), +hat Es, "no man ought to be a judge in his own «ise, becouse he cannot act as judge ond at the some time be a party". The form "nemo potest esse simul actor e+ Judex", that is, °no one can be at once suitor nnd judge" is also at times used. The second rule "audi ali-eram pcirtem", that is, 'hear the o-ther side". M times and particulariy in continental countrfes, the form "audie'hir e+ altera pars" is used, meoning very much the same thing. <A coroliary has been deduced from -Hie above two rutes and particularly 9 "~s. &,-' the audi clteram partem rule, namely "qui alh s1w)uerit, {sarte inaudita altera acquum licef dixerit, haud acquum fecerit'^nw^ is, "he vAo shat! decide anything without the other side having been heard, although he moy hwe soid what is n'ght, wiii not have been what is right" [see Boswet's case (Co Rep at p. 52-a) {(1605) 6 Co Rep 48b: 77 ER 326} or in other words, as it is now expressed, "Justice shouid not only be done but shouid manifestiy be seen to be done". Whenever an order is struck down as invalid being in vioiation of principles of naturo! justice, there is no finat decision of the case and fresh proceedings are left upon (sic open). AII that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated." 15. In the facts and circumstances of tfte case and in view of the clear dicta laid down by the Supreme Court in various casss (supm), the petitioner was offorded fair opporhinity of hearim and hearing does not mean personal hearing. The petitioner was given sufficient opportunity to put forward his case in reply to the show cause notice issued by the Director Senero! of Poiice. 16. It is well settlecl principle of law that this Court while exercising its jurisdiction under Articie 226/227 of the Constilution of India has limited jurisdiction to the extent of reviewing the case, in the event, there is perversity, irregularity or iflegality in the process of decision, not in the decision itsetf. _ 10 17. The Supreme Courl- in the case of V. Ramana Vs. A.P. SRTC and othws aftsr Itaving considered the dicta laid down in B.C. Chaturvedi Vs. Union of India {(1995) 6 SCC 749}, Union of India Vs. 6. 6anoyutham {(1997) 7 SCC 463} and other cases, observed in para 11, as under:- "11. The connmon thread running through in a!l these decisions is that the court' should not interfere with the administrator's decision unless it was itfogicol or suffers from procedural ifflpropriety or was shoeking to the conscience of the court, in the sense that it was in defiance of logic or mora! stondords. In yiew of what has been stated in Wednesbury ca^ •fhe court wouid not go into the correctness of the choice made by the administrator open to him and the court shoutd not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in clecision-making process and not the decision," l8.In Ram Saran Vs. 16 «f Potics. CRPF dBid othws4. fne Supreme Court observed as under;- "8. The courts should not interfere with the administrator's decision unless it wos ilbgical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defioince of logic or moral standards. In view of what has been stated in Associated Provincial Picture Houses Ltd. v. 11 o Wednesbury Corpn. (1948) 1 KB 223 : (1947) 2 All ER 680 (CA) commonly known as Wednesbury case the court would not qo into •Hie correctness of the choice made by the administrator open to hira ond the court shoufd not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision-making process ond not the decision. (See V. Ramana v. A.P. SRTC).' 19. It is wet! settled that the order of compulsory retirement is not a punishment. It impiies no stigma. The petitioner belongs to a disciptined force i.e. Police where required standard of conduct is more ond far more. The Suprerae Court in State of U.P. and athws Vs. Ashsk Kumar Singh and ansthar9 obssrved as under;- "8.......... The High Court faiied to bear in mind that the first respondent was a police constabte and wos serving in a discip'ined force dereanding strict adherence to the rufes and procedures more than any other department. 1-laving noticed th®fact that the first respondent has absented himself from duty without ieave on severol occosions, we are unable to appreciate the High Court: observations that "his absence from duty wouid not amount to such a grave charge". Even otherwis® on tiie facts of this case, -Hiere was no Justification for the 1-ligh Court to interfere with the punishment holding thot "ths punishment does not coramensurute with 1+ie gravity of the charge" especially when the 1-ligh Couri' concurred with the findings of the Tribunal on focts. No case. for interference with the punishment is mode out." ZO.Jhe punidiment imposed by the Director ©enera!of PoKce. doe-t ^y not shock conscience of the court as discip!ined force demonds strict adherence to the mles and procedures more than any other department. Thus. this Court- should not substi'hite its decision to that of the administrator. 21. After hearing learned counal for the pnrties, this is not the case of the petitioner that there was any perversity, irreguSarity, illegalit)r' or impropriety in the enquiry. TTie petitioner is aggrieved by the order of the Director ©eneralof Police, whereby withholding one mcr'ement was enhauicsd to eompulsory retirement from arvice iooking the gravity of the offences comfflitted by the petitioner, 22. For 1+ie reasons stoted-above, •the writ petition is dismissed. No order as to costs. Sd/- Satish K. Agnihotri Judge 1. (1979)t5cc 596 2.{2003)4SCC557 3,(Z005r75G:338 4. (2006)25cc 541 5.(1996)ISCC302 Thskyr/Subbu