f: ^»M"~^ ••'•if E"w 'Xl oft ^ I-t 5.^ ^ 1=1 !~t t9 Q0^ 02 o sa ?? p i:-b Q i3- y t°8. -s? i (Kl t3- 9s- o 3 i-o w !-<^ ! 1o o B& !~t1^ ^./ !SL' t^ mGH COURT OF CHHATTISGARH AT BILASPUR S.B. : HON'BtE JUSTICE SHRI SATISH K. AGNIHOTM PETITIONER RESPONDENTS WRIT PETITION No. 1658 of2004 Govind Warkade S/o Late Chatar Singh, Aged about 49 years, Assistant Sub Inspector, E/o Kotwali, Rajnandgaon, District - Rajnandgaon (C.G.) VERSUS : 1) State ofChhattisgarh Through the Secretaryt, Home Department, DKS Bhawan, Raipur 2) The Director General of Polics, State of Chhattisgarh, Police Head Quarter, Raipur. 3) The Inspector General of Police, Raipur Range, Raipur (GG) 4) The Superintendent of Police, Rajnandgaon, Distt. Rajnandgaon WB1T PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF: / •£• Present: Shri P.Diwakar, Sr. Advocate with Shri Adil Minhaz, iAdvocate for the petitioner. Shri V.V.S.Moorthy, DeputyAdvbcate General with Miss Deepali Pandey, Panel Lawyer for the State / responde^its. (Passed on ^j^day ofApril, 2007) 1. The petitioner has challenged the legality and validity of^the order dated 17.03.2004 (Annexure P/8) passed by the Directorl General of Police and order dated 8.112004 (Annexure PM) passed by the Superintendent of Police, Rajnandgacm, whereunder tiie petitiqner was piinished with by withholdmg increment with eumula^w GfSsct having efiect on the pension ofthe petttioner and lliejsuspension periodwastreatsdassuspeiisiononly..' fl: c 4. The indisputable facts, in nufshell, are that Ihe petitioner working as Assistant Sub Inspecfor at Kotwali, Rajnandgaon was servsd with a charge-sheet dated 24.06.2001 (Annexure'P/1) by the Superinteadent ofPolice, R^nandgaon, to the effect that the petitionerWas ordered to work in the Naxalite ajEiected Police Station, Aundhi. The petitioner, the delinquent employee, did not carry outthe said order...Thus, it is a ^rave misconduct. Reply was filed. Eaquiry OfBcer was appointed. The Sub Divisional OfBcer (Police), Ambagarh Chowld, after havini cbnsidered and having examined the documents and witnesses adduced by the prosecution as well as by the delinquent employee, held that tlie charge to fhe effect that he had notjoined the police Chowki, Aundhi, in Naxalite affected area and has stiown his cowardliness, is not found proved, as the pefitroner had joined fhe post aiid performed the duties as assigned to him. Pursuant to tfae findings ofthe enquiry reportdated 31.12,2001, the petitioner vide his representation dated 12.01.2002 (Annexure P/3), reqyested the Superintendent ofPolice, respondent no. 4, to exonerate him from the charges levelled against him. The respondent no. 4, vide letterdated 18.02.2002, reminded the petitioner to submit his reply as the time granted earlier vide order dated 31.01.2002 was over and he had not filed the reply aad thereafter three more days was granted to him. The respondent no. 4 after having considered the reasons given by the enquiry officer and the reply submitted by the petitioner, came to the eonclusiori that the alleged charge against the petitioner was found proved and impased a punishment of withholding increment with cummulative effect^ vide order dated 28.02.2Q02 (Aiinexure P /4). In appeal, the faspector General of Police, respondeht no. 3, vide order dated 26.7.2002 allowed the appeal partly. and directed to eater "Censure" remafk in the service.book (Annexure P/5). Being aggrieved and dissarisfied with the said ordei, ffhe petitioner moyed an appeal beforetheDirectdrGeaeraljofPoIice.respoadenf no. 2. Tfae Director GeneralofPolice,'vi(leorderdate(i 22.11.2QG2: (Annexure P/7) rejected the appeal aiid^confinned the onierpasssd By; ..-N- ••-^. 7. the Inspector General ofPolice. Thereafter, the respondent no. 2 took up the matter again suo-moto and without issuing any notiee, as required, to the .petitioner, and set aside the order p^ssed by the respondent no. 3 and maintained Ifae order passed by the respondent no. 4 to the effect that the'increment with cumulative eflect was withheld. Hence this petition. Shri P.J)iwakar, Sr. Advocate withShri Adil Minhaz, leamed couasel appearing for the petitioner, questions the validity ofthe order dated 17.03.204 on the ground that the respondent no. 2 has no jurisdiction to take up the matter in suo-moto revision which has already attained fiaality by the order passed by the respondent no. 2 under Regulation 270 oftheM.P, Police RegulatiQns. Secondly, before reviewing the order dated 22.11.2002 (Annexure P/7) the petitioner ought to have been afforded an opportunity of hearing. The respondeat no. 2, without issuing notice to show cause reviewed his earlier order dated 22.1t.2002 a.a.d set aside theeariier order by dismissingjthe appeal and confirmed the order dated 28.02.2002 passed by the respondent no. 4 imposing punishment of withfaolding of increment with cumulative effect having effect on the pension ofthe petrtioner and the suspension period was treated as suspension only, vide order dated 17.03.2004 (Annexure P/8). Leamed counsel farther submits that on account ofthe wrong order passed by the respondent no. 2, the petitioner has suffered consequential benefits of promotion and salary which became due. Leamed counsel farther submits fhat the imposition of "censure" is a minor penalty and it does not come in the way of promotion but stoppage of mcrement with cumulative ef&ct is a majdr penalty which comes in the way of farther promotions and grant ofother benefits. i ^ It was next contended fhaf the disciplinary authority, withoutholdim an enquiry cannot imposelthe punishment as the enquir^ ofiicer faas exonerated tfae petitioner completely from the charge levelled against him. On thatground atso,thepunishmentmiposedbytheldfeciptmary .£ -)\....... -.J:- 10. authority and confirmed by the respondent no. 2 vide oi-der dated 17.03.2004 (Annexure P/8) is bad and vitiated. Per contra, Shri Moorthy, leamed Deputy Advocate General with Miss Deepali Pandey, Panel Lawyer for the State/respondents, would submit that the order passed by the Superintendent of Police, Rajnandgaonis perfectly legal and valid as the same order was passed after affca-ding opportunity of hearing to tbe petitioner. The Direetor General ofPolice, being the head ofthe Poliee Departmenthas right to take up any case for revision and pass appropriate order, I have heard the leamed counsel for the parties, perused the pleadings and documents appended thereto. On perusal of the documents, it is evident that the respondent no. 4, disciplinary authority, has given proper notiee ofheariag while disagreeing with the findings nfthe enquiry officer. The requirement of affording of an Opportunity of hearing is met, when the petitioner was given notice and tiie petitioner has filed his reply. It is clear fi-om the reply dated 12.01.2002, pursuantto the memo dated 5.1.2005 (Annexure P/3),submitted by the petitioner and subsequently letter dated 18.02.2002 issuedby tfae respondent no. 4 to the petitiQner to submit the reply within a period ofthree days as 7 days time granted earlier was over and in theifinal order dsted 28.02.2002 (Annexure P/4) it is cleady stated'tliat the respondent ao. 4 has considered reply ofthe petitioner befbre passing the order. Thus, thecontention ofthe petitioner that no opportunity of hearing was afibrded before passing the order while disagreeing vvith the enquiring authority is factually incorrect. The Hon'bie Supreme Court, in the case of Punjab Nstional iBank v. Kunj Behari Misra(1998)7 SCC 84, while considering an identical questipn as to "when the enquiry officer, during the course of disciplinary proceedings, comes to a conclusion that all or some of the charges alleging misconduGt against an official are not proved then can the disciplinary authority difEer from that and give acpntrary finding witholrt affbrding anyloppoi-tunity tothe delmquentlofiicer" heldasunder: '^ -^ ^-.. 11. "17. These observations are cleariy in tune with the observatiohs in Btmal Kumar Pcmdit case quoted earlier and would be applicable at the firststage itself, The aforesaid passages cleariy bring out the necessity ofthe authority which is to finally record an adverse firidmg to give a hearing to the delmquent officer. If the enquiry dfficer had given an adverse fiiiding, as per Karunakar cdse the first stage required an opportunity to be given to the employee to represent to the discipluiary authority, even when an earlier opportumty 'had been granted to them by the enquiry officer. It will not stand to reason tiiat when the finding ia favQur of the delinquent officers is proposed tobe overtumsd by the disciplmary authorify then no opportunity should be ^ranted. The firststage ofthe enquiry is not completed till the disciplmary authority has recorded its fiiidings. The principles of naturaljustice would demand fhatthe authority which proposes to decide agaiast the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report hasto be given to thedelinquerrtoffieer'wbo can make a representatiQn before the disciplinary authoritytakesfi.u-theractioiiwhichmaybepregiKficial to the delinauent ofGcer. When. like iri the Dresent case.the enquiry report is in favour of the delinquent officer but the disciplmary airthority proppses te xiif&r with such conclusions, then that authonty which is idsciding agamst tlie delinquent officer raust giv^lhim an opportunity of beirig heard for otherwise he would j Ibe CQndemned uaheard. In departmental prpceeBings, what is of ultimate ifflportance is the finding 6f the disciplinary aufhority." I Subsequently, m the matter of Yoginath D. Bagde Vs. State of Maharashtra, (1999) 7 SCC 739, the Hon'fele Supreme Court held asj under: . . , •• "28..........if the enquiring aufhority has held fhe ^ chai^es proKed,|butthediscipluiary aufhority disagrees and records a| findmg that -the charaes were iiot established, there would arise no difficulty. Dif&culties have arisen in all those cases in whichthe enquiring aufhority has recorded a positive finding that the charges were ncrt established and the delinqueiit ofiicer was recommettded to be exonerated, but the disciplinary authority disagreed witfa those findjmfes an4 recorded its own fiadiugs; tjhat tKe' chargps ,were established anc^itfae delmquentJojffieer was liafele^to be | ' punished. ThN I diffieulty rela|tes to the qu^sdon of i ..J ^ 12. pving an opportunity of hearing to the delinquent officer at that Stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportunity. Where the rules are in this regard silent and the disciplinary authority also does not give an opportunity ofhearing to the delinquenf officer and records findings difierent from those of the enquiring authority that the charges . - were established, "an opportuntty ofhearmg may have to be read into the rule by which the procedure for dealmg with the enquiring authority's repbrt is provided principally because it would be contrary to the principles of natural justice if a deliaquent officer, who has already Been held to be "not guilly" by the enquiring authorily, is found "guilty" without bein^ afforded an opportunity ofhearing on the basis ofthe same evidence and material on which a finding of'not guilty" has already been recorded. " Further, iri the nlatter bf J.N.Naiksatam v. Prothonotary & Senior Master, (2004) 8 SCC, theHon'bls Supreme Court held that: ^- i 13, "Even though the rule as such does not contemplate yvmg an bpportumty to the appellant delinquents before the disciplinary ailthoritytakes a final decision- tOidisagreewiththereasQnsgiven by the enquiiy officer, such a provision could be read into the rule but even then the appenants cannot be heard to sa^ fhat there shall be a persDnal hearing by fhe disciplmary aulhority. In the iiistant ease, the appellants were given a copy of the tentative decision of the disciplinary authority and fhe appellants famished detailed explanation and we are ofthe view tiiat tbe principles ofnaturaljusticefaavebeea iuUycomplied with anjd we dolnotfind any infi-action ofjrules or infirniity in the saiddecision." - ! In the matter ofRanjit Singh V. Union of India, (2006) 4 SCC 153, the Hon'ble Supreme Court held that: , "22.,.......itis nowlwell settled thattiie principlesiof naturaljustice were requiredto becomplied •with byttie discipUnaiyauthority.He was also required to agplylus mmd to the materials on'record.; Th& enquiry officer anivedatfmdingswiHchweremfavburoftiieappella^t. Such findings were required (s?c sought) itoi ibe overtumed by thel disjsiplma.ryauthority.It is in that view of tfas matter, the powejr sought to be exercised by ^he. Yji y- ( disciplmary ..autfasrily, ^^ not as that of an A^ellate'Authority.but-^a^ thereto. The inquiry repprt was in fayour Qfthe appellant but the disciplinary authority propOsed to (iiiEferwith such conchisions and, tluis,^art fromcofflplyingwiththeprinciples ofnatural justice it was .abfigatoryiori his part, in the absence of any show-cause file3^;by-the appellant, to analyse the! materialsoHTecordafiesh. ' 14. Applying the above settled pririeiples gflaw to the present facts pfthe case, the delinquent employee was giyen show cause notice and as such opporlunity 6f heanng^was afforded to him and the petitk>ner submitted his reply also: Final ordeT was passed by the disciplinary authority after consideririg ^lfae ;iHatenals available in the enquiry y report and ffiereplyfiledl)yitl iipetiticme^^^^^ coming to the conclusion that the'petitioner was 'told guilty of the charge levelled • agamsthim; ''- ^ -.'. •'.y;;;-;1^',:: • _ ..:••,..;,,,<. 15. Wifti regard to the second eonteatiigia as to whether the;,©irector General ofPolice, in exereise ofits ^tywer under Regulatibn2'7Q, can review his own order without afFording an opportunity Qfheanng. "M.E PoBce RegulatuBis, Itegulation 270: [(l) Ewery order of punishment of exoaeration, whether original ;or appellate shall be liableto re'visioa suo-motu byan authority sHperior to the;authoritymakingtheorderj. ? • (2) Every appellate orderbyafinal appellate authprityshaU be Uable to revision by siich^ final appeltate ai.rthonty,^ on application made in that behaJfby the person against whom the order has been passed. Explanation.- For the purposes of this clause, the expression "final appellate authority"L;means the final | authority : empoweredto bearanappeal{uh(terI>oliceRegulation262. - (3) The provisions ofRegulatiens 266, 267,268aB(I271 shall, as neariy as may be, applyto an application for revisipa. (4)The revising authQrity may fbr reasons to be|recorded in writing exonerate; or may remit, vary or enhance the punishment impbsed ormayorder a fresh enquiry or th®taking offerther evidence inthecase: 1 Proyided that it shall not vary or reverse any or^ler unless nptice has beea serped onlthe Rarties interested and dpporturiity ^tyentothemfiAbeingheard,]" l-<"i 1 -16. ^gulation ^70 GOBtemplates suo-motu reYision by the authorrty superiorlx^llj®aufliori^ mafcing the order. Thus, it is clear that fhe onleFpasse(I|t|ystlie^spondent ao.Scannot be taken inrevision suo- mcto ly him|'l|ut!a;n5f^autfaority superior to him, may be the State Govemmen|||'l|hys, ^ercise of power by respondent no. 2 under ^,:; 'K iReguIatiiOn.iSl^isl^rond hi& jurisdictioii. Clause (4) Qf Regulation ^|27©SiffieEiBSBe^Gtearfhatt^ may vary or eahance th&punishgie^ imii^ed after issue ofaotice to the party irtterested and QpRorRultygi^^lto hiEn for being^^^fa^ ~!neithCTlia&|^e®d!Cm|B^faus,1;KepK}^ 17.03.2004 is ^bad as'^eu^%itIllcm|,J^E"S^^n.^r[|ii^s^^ , ' and :si^).«sicte.i;3'fieS»ailieij^oi^rda.te^ (Annexure P/7) passed byt^'resi%nd^^iN-i2, the^^^^ Police is coafirined.y;:|,'.ly.;:'''..^^ . ;: 1:::-:- . :' ' " "'::' 17. 'As a!result,;aad^|br1fhe reasons^^^s^ allovred and 'the petitfoher is entitled to sll the consequeirtialj benefits flawiflgiiom thisbrder. No orderasto costs. :NI:]1 I. ^ Amit tS.. ~^~ Sd/- Satish K. Agnihotri Judge i«l! uai!U l:ii!;!!!.i"ii;'.^ :t. fjlflJlilS .t!.l'i!:llilllU l:!iU BKI. 811 BllilE i:ia;i i:^.^^ a.i