o INTHeHlGHCOURTOFJUDICATURECHHAmSQARHATBILASPURIC.G.l \N.P. ^ /20G2, PETITIONER FWSMANAND SH/y%4AS/OShriN^ramaftarma Agedabout 52 years, HeadConstable, IstBattalion Chattisgarh, Bhilai,E)istt. :-Durg {C.G.1 VERSUS \-^<^^ ^p<^^&>'s, - ^- '^f> ^" t-''^" ..••"'' '^y ^ -^^ 'fyi'''- ^y ^,^ •'v^-' StateofChhattisgarh throiighthe Secretary Honre Department D.K.S; Bhavan Raipur[C.G-] Director Genera) ofPolice SiateofChhattisgarh, Home Department RaipurJC.GJ 3. Commandant,1stBattalionC.G.S.A.F.Bhitai, Distt.Durg. 4. Deputyfrispector GenefalofP( 1st Battalion C.G.S.A.F. BtjNi, Distt. Durg. •€—' WRrr pETmoN UNDER ARTICI.E zzeffiaffREAD Wn^ARTlCLE31A<^THeCONstmjrrK?^€ffitND^ III; HIGH COURT OF CHHATriSGARHAT BILASPUR Writ Petition No. 28 of2003 ; ^ Petitioner Panaanand Shanna Versus — . Respondents State ofChliattisgarh & ofhers Single Beach ; HonTale Mr, Justice Satish K. AgaXbotxi. Shri Neelkaiifh Malviya, Advocate for fhe petitioiier. Siat. Anju Ahuja, Depuly Govt. Advocate for the respondents. ORAL ORDER ( 20dlMareh, 2006) The followiug orderofthe Courtwas passed by Satlsh K. A@iihotri, J. The petitioner has filed fhis petitipn chatlengfaig ttie orders dated 30.9.1997 (Annexiire P/2), 30.9.1998 (AnneXurc P/4)aad 7.10.2002 (Annexure P/7). The adinitted facts in nutsheB. are that fhe petitioner was workiug as Head Constable, Inchai^e of fhe General Caateen of II*11 Battalion for the peiiod from 1.6.1995 to 6.7.1996. On 6.7.1996 ttie charge to ttie post of Inchai^e of General Caatcen was handed over to one Shri Samaylat, Assistant PIatoon Coiuinandant. On 17.4.1997, chary sheet containing several chaiges to fhc foUowuig effe'ct was issued to the petitioner i.e. (i} the delmqucnt employee had n.ot kept records legaBy aiid properiy, (i^ he had not^handed pver chai^e in|accordanee with law and in time to his successbr, (iii) during fhe traasfer period wifhout permissiQa of the coDipGfent authority, toe had|purchase<3. *. "... i.....: •"'.,•-:.' ' .'. • •• ." ...' "!:'..: .' '....... •.:;-': goods worfh Rs 67474.78 fiiDin different finas, (iv) he had obtauied permissiori from CoTnmandan.t jfor the moutli of September, 1995 but -~-'.J ^ thereafter made changes ia Srl. No.77 ofitem ledger blade, sepaTately, whereby general canteen was made to pay Rs. 8800/- for unrequired thiags aad as such financial loss was caused, (v) ia ttie months of 11/95, 4/96 and 6/96 he purchased the niaterials worth Rs. 2 Lacs wifhout permission of the Coiiunandant, (vi) he Iiad manipulated canteen recoids by showiug hnge profit to mislead senior ofBcers, and (vifl without proper pei-mission he advanced materials aad cash 6n loan. to outsiders causing loss to fhe caateen. A proper enquiry was held wherein one Shri P.K. Sinlia, Assistant Comiaandaiit of the llih BattaUon was appoiuted as enquuy officer. The enqiiiry pfficer m his enquiry foimd chai^es No. l, 2, 3 and 4 as not provcd and charges No. 5, 6 and 7 as proved. Agreeing with the findings offhe enquuy of&cer, the RespondentNo.3 Conimaadaat IIA Battalion, Special Armed Forces, Bhilai (as he fhen was before bifureation of thc State of MadhyaPFadeshon 1.11.2000) imposed punishinent of reduction in rante froiu fhe post of Head Constable to the post of Constable for a period pf one year withozit haviag any effect on the future increments etc. vide order dated 30.9.1997 (Annexure P/2). Being aggrieved, fhe petitioner filed an appeal before fhe Deputy Inspector Cteneral of PoUce, Special Amaed Forces, Bhilai (Annexure P/3) whereia the petitioner has clearly stated fhat the petitionerwas not suppUed wifh the enquiry report before iiapositionofpunishiaent. The appeUate autfaority i.e. fhe Deputy Inspector General of Special Armed Foroes, Btulai vide onlerdated 30.9,1998 (Anaexure P/4) confiriDfid fhc fuidings of fhe enquiry oflBcer aiid upheldi the peiialty iraposed by fhe disciplinary authority. <''""' •'v ' \l Beuig aggrieved fhe petitioner has filed ttus petition under Article 226/227 oftheConstitution of India praying fhat fhe order of puDishinentdated 30.9.1997 (AunexureP/2) aad fhe appellate order dated 30.9.1998 (AiiaexuTe P/4) bc quashcd. It was furtfa.er prayed fhattheorderdatedy, 10.2002 wherebyproinotionoftiiepetittQnerto fhe post of Assistant Sub Inspeetor was denied on fhe gnound fhat due to the imposition of inajor penally i.e. reduction pf rank, fhe petitioner was not entitled t6 cdnsideration for a period df five years. The petitioner has further prayed that ttie consequeutly the petiti.oner be treated as Head Constable with effect fi-om. 30.9.1997. Sliri Neelkanfh Malviya, leamed counsel appearing for the petitioncr subinits that fhe denial of the enquiry report to the cmployee before imposition ofinajorpeiiallyi.e. reduction ofiank in service is violative of prmGiple of natural justice aad •further it is violative of Regulation 230 of the M.P. Pulice R^idatiQns, which bas been adapted by fhe State of Chhattisgarii. Leanaed counsel further submits fhat the penally of rediiGtion of rank iD.service be quashed and Cpnsequential benefits of proiuotion be granted to the petitioner as the Qrier of unposition ofmajor penalty is bad and invalid in view ofthe fact fhat fhe inipugiied puilisllmentdated 30.9.1997 is uncpnsfitutional and contrary to fhe ratio laid down by titie Supreme Court iu Maaag^ng Director, ECIli, Hyderabad flk others Vs. B. Karunakar aad othCTS { (1993) 4 SCC 727} aad further teing violative of ReguMtion 230 df the M.P. Polk-e Regulations. Sint. Aaju Ahuja, leamed Depuly Govt. Advocate appeaiiag for the respondents, per oontia, subnuts fhat fhis petitioa de^rves to be rejected on fhe grouiul ofdeiay as the petrtioDfir has Gtosen. not to fite :- !» aay petition for 4 to 5 yeais as fhe appellate oider was passed 011 30.9.1998 aad the present petition was ffled on 20.12.2002. Leamed counsel furfher subinits fhat fhe petitioner has no right to ehatlertge fhe iinpugaed order of punistuncat because tfae petitioner has avaited full opportuaity ofpresentmg his case before tlie appellafe aufhonty, accordingly ttus petition deserves to be disinissed. 8. After having heard lcamed counsel for the parties aad havuig perused ftie documents aanexed to ttie petition as weQ as to the retum, it is clear arid adinitted position ttiat fhe petitioner was not supplied with a copy ofthe enquiry repprt tffl date. The petitioner was not given aay opportuaity of putting his case before iniposition of penalty of neduction ofraak in seryice froiu ttte post of Head Constable to the post ofConstable. The petitioner has raised flie issue ofnon-supply of the enquiry report ou very fiist opportuiu<y belbre the appellate aiithority. This act offhe respoadents tantamoiints to the violation of fhe principle of natural justice. The appeUate authority has chosen not to considerthe case ofthe petitioner tb the efifectfhat hewas not supplied wifh a copy of the enquiry report and in a mechanieal inanner fhe appellate aufhority has confinued the finduigs recorded by the enquiiy oflBcer aad upheld thc punishineat imposed by the discipluiaiy aufhority. The appeUate aufhorily did not address on the issue of non-supply of the enquiry reporf to the petiti6ner before passing the order of imppsition of major penally. It appieacs ffae i appeltate order was passed casuatly without applyingits iiimd. 1 9. I Regulation 230 of the Madhya Pradesh Police Regulatioas is reproduced as under:- - 230. D.E. -Cppiespflindingin.-Inveiycaseaverbatunco^pyof fhe origuial or appeBate findiag aad order wffl be given at once' to a i%%@ ISiBt •Ul •;: ,^^^'s 3Br ia % poUce o£5ceragauist whom. aa order of punishinent M passed, aad a note that fhis has been done wiU be inade on fhe record. In eases ia which fhe original order is based on the report of a subordinate aufhorily, fhe copy of the report should be given as weU as the order. Ifthe accused wishes for a copy of the rest of fhe record, he cairbe suppUed with it on payinent at the district rates, or bn prDviding tds cwn paper aad copyist. If fhe accused is not pnesent ia person to receive the copy ofthe order, it should be sent to hiTn by registered post, registration fees beiag paid to cover a postal acknowledginent froin fhe appeltant. The postal and theappeUaats ackaowledgeinents of the registered letter should be Bled wifh fhe record." 10. In Man^ag Director, ESCIL, Hyderabad 8s others (supra) iu paragraphs 29 and 31 fhe Suprem.e Court held as under;- 29. Heace it has to be heldthatwhen ttie enqiiuy ofBcer is notthe discipluiaiy authority, the deluiquent eniployee has a r^ht to receive a copy offhe enquiry officer's report before the disciplinaiy aufhority arrives at its conclusibns with regard to thc guilt or iruicx;ence of the employee with regard to fhe charges leveUed agaias^ him. That r^;ht is a part ofthe eraployee's right to defend himself agaiust the charges leveUed against him. A denial 6f the enquu-y ofBcer's report before fhe disciplinaiy aufhority takes its decision on fhe charges, is a deiiial of reasonabfe Opportujuly to the eiaployee to prove his uinocence and is a breach of the principles of natural justice. 31; Hence, rn.aU cases where fhe enquiry oflBcer's rcport is not ftimished to fhe delruquent employee in ttie disciplmajy proceedings, fhe Courts and Tribunals should cause fhe cbpy of the report to be fumished to the aggrieved einployee ifhe has not already secured it before coiuiug to the CouTt/Tribunal and give the employee an opportunity to shoiw how Iiis orherlcasewas prejudiced because offhenon-supplyoftfaereport. Ifaftprhearing fhe parties, the Court/Tribiinal comes to fhe conclusiba that the non-siippty of the repprt would have aiade no difiFerence to tiie ultimate findings and the puiushnieat given, the Court/Tribunal - -j-.i-.-.:a.ic;*u-o^it: ^i^- 6 'e: II, sttould not intcrfeFe wifh fhe order of puiushiaen.t. The Court/Tribiuial should not mechanicatly set aside fhe order of punishnient on the ground fhat the report was not fumlshed as is regrettably beiag done at present. The courts should avoid resortiag tp short cuts. Since it is the Courts/Tribuiials wtuch wffl apply theiFjudicjaI miad to the question land giv&their reasoris for setting aside or not setting aside fhe order of punislunent, (and riot aay intemal appeUate or revisional authority), fhere wo-uld be neither a breach of fhe principles of naturaljustice nor a denial of fhe reasonable opportunily. It is only if fhe Court/Tribunal fiiids that the furnishiag of the reportwouM have inade a difference to fhe resiilt in fhe case that it shduld set aside fhe order of punishineiit. Where afler following fhe above procedure, ftie Court/Tribunal setsaside the order of puiiishinent, the proper relief that should be granted is to direct reinstateinent of tiie eiaployee wifh Kberty to the authorify/managem.ent to proceed wifh ttie inquiiy, by pla.Ging the employee under suspenaion and CQntinuing the inquiEy froin tfae stage of furiushiag hun wifh fhe report. The question whether fhe employee would be entifled to the back-wages aad otherbenefits feom the date ofhis dismissal to the date of his reiastateiuent if Ultunately ordered, should invariably be left to be decided by fltie authority conceraed according to law, after the cnlTnination of fhe proceediags and depending on thc fiaal outcoine. If the eniployee succeeds in the fresh inquiry and is directed fo be reiastated, the aUfhority should be at Uberty to decide accoiding to law how it vsnU treat fhe period froin the date of disinissal tiU fhe reuistateinent and to what benefits, ifany aad fhe extent of the ben.efi.ts, he witl be eD.titled. The reinstateinent inade as a result of the setting aside pf fhe inquiry fbr faihire to furnisli the report, ShDuld beltreated as a reuistateinent for the piirpose ofholdnig fhe fresh iaquuy fi?om. the stage of furaishiag the rcport aiid no inore, where such fi?esh uiquiiy is held. That will also 'be fhe ^on-eGtposition in. law." The Supreme Court in NTC-(WBABa>0) Usd. aaid anotteer Vs. An}an K. Saha { (2004) 7 SCC 581} while considermg the efEedt ofratio laid 1.1il i;IIIf SN if! ''E'K^^i^ i'^gai! 12. down by the Supreme Court iu earlier case of Managjlag Director, BCIL, Hyderabad SB others (Supra) bas held inpara 10 as Uader:- "10. As stated by the High Court, we do not End fh.at fhe language of clause 14(4)(c) ^ inaadatoiy. In any case, nbn-coinpliance fhercwifh cannot be held to be a more vitiatmg_factor fhaa non- supptyofenquiEyreport.IftheeonstitutionBenchofthisC'ourtui cases of noii-supply ofeD^quiiy report du-ects the procedure to be adopted by aBowiD.g the einployer to restart the enquiry froin the stage of supp]y of enquiry report without reinstating fhe employee, why such a course should not be dutected to be adopted where the ofher grievance of the eiaployee is denial of oppQrtuiiity to stiow cause agamst proppsed penally? When the court caa direct a fresh enquiry fioin the stage ofsupply ofenquiiy report the next step ia theenquuy of giving opportunity against fhe proposed penalty caa also be direeted to bp taken. Afler the fi-esh eaquiry is over from the stage pfsupply ofenquuy report, fhe einplpyee can be granted opportunity against proposed peaally ia terms of clause 14(4)(c) bf fhe Model Standiag Orders. Consequential oider, if any passed, shaUabide the iinal resultofthe proceediags. As lield ia fhe case of B. Karunakar if the einployee is cleared of the chai^es aad is reinstated, the discipluiaiy authorrfy would be at Uberty to decide aGCordiag to law how it wffl treat the period ftoin fhe date of dismissal tiU the period of reuistateinent and the cqnsequential bencfits." The Supreme Court m H. L. Trehan aad others Vs. Union Of ladia & others{(1989 1 SCC 764}mpaTa 11 has heldas mider- "11. .............Itis now a weU established prin.cigle of law that fhere caa be no deprivation or curtailment ofaay existing right, advantege or benefit enjoyed by a govemment servant without coinptying with fhe rules of natural justice by giviag fhfi goveminent aervaat concemed aa opportunily ofbeiag heaTd. Any arbitraiy or wliimsical exereise of power prejudiciat^ affecting fhe existing conditions of service of a govemTneDt seivant wiU.ofiend agaiastthe piuvision ofArticte 14 offhe ConstitatiQn...!......" :1.8 •Bia Siia ^^^ ^•^l^ s^^l^-^^^^ 13. In the facts aud circuinstaaces ofthe present case the petitioner was denied opportunity of hearing after enquiry report was subinitted and before final order of unposition of penaKy of reductioa iu rank fi1oni the post of Head Constable to the post of Constable was passed. The appeUate aufhorily has also not givea any consideration to the subinission of the petitioner fhat the petitioner was denied opportunity of hearing at the st^e before unposition of penally of reduction in raak. Tbe appeUate aufhority has eonipletely igndred fhe provisions of Regulation 230 ofthe.M.P. Police Regulations as weU as the weU settled pririciples of law as enunciated by the Supreiae Court in various cases.At ttus stage, the petition caunot be thrown away on fhe ground ofuiu'easonable delay ia fiting this petition. 14. For the reasons sfated above, the petition is partly aBowed to fhe extant fhat fhe petitioaer be fonualty reinstated for fhe Itmited piirpose ofenabUng the respondents to proceed with the enquuy from the stage of fumishing him with the copy of the enqiiiiy report. After conclusion of the enquity ia case the petitioner is exonerated, the aufhorities ShaU decide aceoiding to law, about the payment ofwages and further how fhe case ofthe petitioner be CQnsidered for proiaotion in accordaace With law. No order as to costs. Certified copy, as per Rules. Sd/- SatishI^Agnihotri Judge :T)-ialt;ur :^.j^- 'SI? liB '' \: > .