yss ^:^ ,.;/ 1 ,^a' ^ ^" " :'-1^ • /'-: . ;'.^^^^-'i-^iT°u [^- fcb1.^ .> | . ^; . ^^^ • .'1 • 1" ^ ^ " 1' ~ _. j ^^-.^^\D^- .;• • • ^ >.;•• laL^..^ ut CF0000019516 -^-, ——— II 2EE HXuH 004jE££? Of MlSHYA PSABSSH ATIr JABAl<]PUa. --p-1-^ ?of 1981 m ^/2ffo^e,ona *p,e^ ADpellairfe {•»-BOt1;llat a&ed 44 y@ars soa of Shr^.. Bhagwand.een, ex-Police Goostable No. 402 a?©sidento£ Santoslii- ^r.Bsar»Baipur» Versus^ <i! BespQnd.eii-fcs s-1 • (yQvernfflQ'i'rt of .Madtaya Pradesh througli Gollec-teor, Tlaipur. <^i^« lospeotor Seneral of ^olice ,iaad]aya Bradesh , Bliopal* •:'' '3« Beputy Inspeo-feor Gensral o:f Solice, tatpur Bivlsl.onj Saipure. 4^ iddl» Superintenaent Qf I>(»Iioe,Salpiu?< Seeond, ^oppeal 22^@£^o^.5>5^J©OG-?<»G< ^:i^~%^ / "' 1 y^ 1 ^*^^^^ § HIGH CQURT OF CHHATTISGARH: BILASPUR Second Appeal No.67 of 2007 APPELLANT: Motilal Versus RESPONDENTS: Government of Madhya Pradesh (now Chhattisgarh) & others POST FOR JUDGMENT ON^JULY. 201 1 Sd//- Prashant Kumar Mishra Judge 7 1 :^-y ^:^s^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No.67 of 2007 APPELLANT: Motilal Versus RESPONDENTS: Government of Madhya Pradesh (now Chhattisgarh) & others Present: Shri N.K. Vyas, counsel for the appellant. Shri G.D. Waswani, Govt. Advocate for the State/respondents. JUDGMENT (Delivered on^July, 2011) Prashant Kumar Mishra. J. 1 This second appeal under Section 100 of the CPC arises out of the judgment anddecree passed by the Civil Judge Class-2 Raipuron 23-4-1984 and affirmed by the first Appellate Court by its judgment and decree dated 4-5-1987. 2. This appeal was initially registered as S.A. No.313/1987 and after constitution of the State Administrative Tribunal (for short 'the Tribunal'), the second appeal was transferred to the Tribunal where it was registered as T.A. No.4/1999. However, after abolition of the Tribunal, it was re-registered as W.P. No.3247/2006 in the High Court of Madhya Pradesh, which was later on transferred and re-registered in this Court as W.P.(S) No.1766/2005. However, since the order under challenge was passed in First Appeal under Section 96 ofthe CPC and initially it was, registered in the High Court of Madhya Pradesh as second appeal, it was again registered in this Court as S.A. \ "No.67/2007. T 3. The appellant preferred a suitfor declaration and consequential service benefits on the pleadings that he was appointed as Constable in the Police Department. However, under the prders of Additional Superintendent of Police, he was suspended and a departmentat enquiry was instituted on the charges that he assaulted Head Constable Awadh Bihari and Mst. Shanti Bai after committing lurking house trespass in the night in the house of said Awadh Bihari on 3-6- 1980. He was also charged for making obscene abuses on said Awadh Bihari and Shanti Bai in front of public and kept them sitting in the Verandah ofthe police station and provoked the membersof public against said Awadh Bihari and has thereby lowered the prestige of the police in the minds of public. It was also alleged that he submitted false information to the higher officers by trunk call. An enquiry was instituted by the Additional Superintendent of Police, Raipur and the same was conducted by the Deputy Superintendent of Police, Raipur. At the end of enquiry, the enquiry report was submitted wherein all the charges were found proved. 4. Another delinquent namely AlokiDutt was absolved of all the charges after issuance of showcausenotice,whereas the order of compulsory retirement was passed against the appellant. The appellant preferred an appeal which was dismissed on 17-2-1987. Hethereafter preferred another appeal which was treated as revision and was also rejectedon merits. After serving legal notice, the present suit was filed. 5. According to the appellant, the entire departmental enquiry was ~^ conducted in an ille'gal manner and proper opportunity of hearing was ^^-22^ /ig3^ I ^'1 '^^,^:1 ^ '%I^ ; |»«NIUW, ^ not afforded. It was pleaded by him that the charges were vague and unclear and the enquiry officer was not appointed in a lawful manner. He was not granted opportunity to produce witnesses and, therefore, the order of punishment deserves to be declared illegal and the appellant deserves to be reinstated in service with all consequential benefits. 6. The defendants submitted their written statement and denied all the allegations made in the plaint. It was specifically stated that the plaintiff/appellant was given full and adequate opportunity of hearing and was given second show cause notice against the proposed punishment and the rules of natural justice have been adhered. It was stated that for want of notice under Section 42 of the Police Act, the suit is not maintainable and that allegations of prejudice to the plaintiff/ appellant, bias on the part of the authorities, denial of adequate opportunity, violation of the procedural laws, illegalities, improprieties etc. are misconceivedand denied. • 7. The trial Court dismissed thesuiton finding that the plaintiff/appellant has not been able to prove that he was not granted proper opportunity to defend himself. It was also held by the trial Court that the plaintiff has failed to prove that the enquiry officer was not appointed in a lawful manner and that the departmental enquiry suffers from illegalities. The appellate Court has affirmed all the findings recorded by the trial Court. 8. The present second appeal was admitted on the following substantial question of law':- '•^ '"^'""\.^" :?;^r"'"' • "Whether suspension, Departmental Inquiry and dismissal of the appellant was in accordance with law?" 9. Learned counsel for the appellant has argued that the finding recorded by the Courts below that the enquiry was conducted in a proper manner is perverse, as record of the enquiry was not summoned. He would also submit that the appointing authority of Constablp is the Superintendent of Police, therefore, punishment of compulsory retirement could not have been awarded by the Additional Superintendent of Police and that on same charges,another constable namely, Aloki Dutt was proceeded and was absotved of all the charges, therefore, the finding that the charges are proved against the appellant is perverse. 10 With regard to the argument that under the relevant provisions of the Police Regulations, the appointing authority of the constable was Superintendent of Police, therefore, the order ofcompulsory retirement passed by the AdditionalSuperirrtendent of Police was illegal, it is t6 be seen that in the entire plaint, the appellant has not stated as to who was his appointing authority. The appellant has not submitted his order of appointment and no plea in thisregard has been made in the plaint. It is also to be s^en that in the absence of any pleading, the defendant/State was not granted any opportunity to defend the said argument and no issue was framed by the trial Court in this regard. In the civil suit, itwasthe duty ofthe plaintiff/appellant to have specifically raised this point as to who was his appointing authority. Since no issue -y- ! . , ! ' ' . was framed by the trial Court, the concurrent finding recorded by the ^ Courts below appears to be justified that the plaintiff/appellant has failed to prove that the order of punishment of compulsory retirement was passed by an incompetent authority or by an authority lower to the rank of his appointing authority. ll.The second argumentraised by learned counsel for the appellant is that the finding recorded by the Courts below that enquiry was conducted in accordance with law is perverse because in the absence of record being submitted before the trial Court, the Courts below should have held that the defendants have not been able to justify the allegation made by the plaintiff thatenquiry was vitiated. 12. In the record of the trial Court, copy of charge sheet is filed as Ex.-P/1 and reply submitted by the plaintiff/appellant is filed as Ex.-P/2. The enquiry report dated 23-9-1980 submitted by the enquiry officer namely, Vishwanath Pancholi, Dy.S.P., is ffled as Ex.-P/3. Show cause notice proposing punishment of dismissal from service was issued vide Ex.-PMon 30-9-1980 and thereafter the order of compulsory retirement was passed on 31-10-1980 vide Ex.-P/S. The appellant's appeal was dismissed by the DIG, Raipur Range vide order dated 11-2-1981 (Ex.-P/6) and thereafter another appeal preferred by the appellant before the IG, Police, Bhopal (M.P.), which was treated as revision, was dismissed on 30-5-1981 vide Ex.-P/S. 13.0n the other hand, the defendants have submitted certified copies of the entire order sheet ofthe departmental enquiry as Ex.-D/1. 14. The argument regarding perversity has been raised with supportive ^argument that the proceedings of the enquiry were not submitted before the trial Court, therefore, in the absence of documents, the observations made by the trial Court and affirmed by the Appellate Court that the entire record was produced is contrary to record and, therefore, perversity is writ large. l5.To examine this argument, the plaint averments and the submissions made by the plaintiff/appellant in the evidence is required to be considered. In the plaint, it has been stated in para-11 thereof that the plaintiff was not granted adequate opportunity to defend himself. However, in subsequent paragraphs No.12 & 13 emphasis is on illegal suspension. In para-13, it is pleaded that the Additional Superintendent of Police acted against him in a malafide manner. In para-14, it is stated that the charges were vague. In para-15, it is stated that the enquiry officer was not appointed in a proper manner and in para-16, certain persons were named to allege that these persons were not examined as witness either by theenquiry officer himself and even on therequestmade by the plaintiff. 16. In his evidence in the Court, the plaintiff stated that he has filed reply to the charge sheet and has requested to examine Dr. Yadav, Chintaram Sarpanch and Chandrabhan Singh, but these witnesses were not examined. In cross-examination, he has stated that he had no enmity or personal grudge against the enquiry officer or the Superintendent of Police or with DIG and IG. In the document exhibited by the plaintiff, any application made to the enquiry officer that he wants to examine certain witnesses is not filed or proved. When the plaintiff has filed written reply and has thereafter preferred an appeal and revision /against the order of punishment, he could have made request for examining the defence witnesses by moving an application and in the absence of any such application having been submitted and proved in the course of trial, it cannot be believed that the plaintiff made any request to the enquiry officer for examination of the defence witnesses which was not granted. 17. In addition to the above, in the certified copy of the order sheets filed by the defendants as Ex.-D/1, it is recorded on various dates that the y delinquents are present and the witnesses were examined intheir presence and have also been cross-examined by the delinquents. The examination and cross-examination was conducted on 21-7-1980, 26-7-1980, 28-7-1980, 5-8-1980, 12-8-1980 and 29-8-1980. Thereafter the matter was fixed for examination of the delinquents and both the delinquentswere examined on 6-9-1980. On both these dates i.e. on 29-8-1980 and 6-9-1980 the plaintiffwas present and has put his signature on the order sheet. The order sheet of 6-9-1980 records that both the delinquents seek time till 8-9-1980 for submission of written statement and list of defence witnesses. They were present on the next date i.e. on 15-9-1980 and on the said date, defence witnessNo.1 Ram Niranjan wasexamined. On 17-9-1980, defence witness No.2 T.S. Katlab was examined and the order sheet of this date records that the matter is adjourned for submission of enquiry report. The signature of the plaintiff is available in the order sheet of this date also. 18. From the above narration and reproduction ofthe contents ofthe order sheet of the departmental enquiry, it is clearly established that the ^laintiff was present on all the dates before the enquiry officer and has t <<• put his signature. He was granted time to examine defence witnesses and in-fact, two defence witnesses namely, Ram Niranjan and T.S. Katlab have been examined. If the plaintiff was allowed time to submit list of witnesses, it is strange as to why the said list of witnesses, if any, filed by him has not been submitted and proved in the courseoftrial. It is also unbelievable as to how when enquiry officer allowed two witnesses to be examined as defence witnesses, why would he refuse to examine other defence witnesses, if any such prayer was made. More so, the plaintiff admits in his evidence before the Court that he had no inimical relations with Shri Pancholi, Enquiry Officer. Thus, the plaintiff's case that he was not granted proper and adequate opportunity of hearing in the course ofenqujry is not substantiated in any manner and the finding recorded by the Courts below in this regard is absolutely justified and it does not suffer from any perversity. 19. The second limb of the argument regarding perversity of the finding is in relation to non-production of the record of the enquiry report before the trial Court and yet there being an observation that the trial Court has perused the record of the enquiry. 20.1n this regard, the evidence of DW-1 V.N. Pancholi, Enquiry Officer, needs to be referred. In his examination in chief, he has stated that he has appeared in the Court alongwith entire record ofthe departmental enquiry. This witness has been cross-examined by the plaintiffs counsel, however, no question has been asked from this witness that the record which he has brought is not complete record or that he has filed only order sheets and all other records have been held back from y the Court. ^ 21. In view of the above discussion, this Court does not find any substance in the argument that the entire record of the departmental enquiry was not submitted before the trial Court. 22. In view ofthe foregoing, this Court finds thatsuspension, departmental enquiry and punishment of compulsory retirement (wrongly mentioned as dismissal in the substantial question of law) against the appellant was in accordance with law. The substantial question of law is accordingly answered against the appellant and as a consequence thereof, the instant second appeal fails and is hereby dismissed. Sd//- Prashant Kumar Mishra Judge Barve