IN THS HIGH GOUST OF 2HS J-ODIGA-IURS AT B3:LASPUR(C.G.) PETITIONSS : fiESPONBENTS; ri^^ .....^-•c^y ^.w>'^'%^-- 'v^" \^-'s W.P. No. 58i0 /2002 Ai^vind Kumar Pandey s/o Rajiv Lochan Pandey aaed about 35 years, R/o village Sc.Pos't Khadgwan Sis-fct Korea (C.G.) State of C.G. t'nrouq'h •t'be Home Secre'tary, Home Department Ghhattis- garh, Raipur (G.G.) Director General of Poliae Police Mukhyalaya Chhattisgarh Raipur (C.G.) ' Gomandent VIIth Batalian Ghhat-tisgarl' firms Police :BhiI^< C.G WRII PSTITION UimER ASTIGLE 226/227 OS' GONSTITUIION OF IITOIA. ^•^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition No. 980 of 2002 PETITIONER RESPONDENTS VERSUS Arvind Kumar Pandey State of Chhattisgarh and others Post for pronouncement of the order on f(j .12.2011 f<1 f Sd/- /-J i Pritinker Diwaker f t"— Judge yiii,;. ^aLfafcS' ^•K HIGH COURT OFCHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition No. 980 of 2002 PETITIONER RESPONDENTS VERSUS Arvind Kumar Pandey State of Chhattisgarh and others Shri R.K. Jain, counsel forthe petitioner. Shri Pravin Das Dy. GA for the respondents. WRIT PETITIONS UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA ORDER (^.12.2011) Challenge in the present writ petition is to the order dated 23.6.2000 (Annexure P-3) passed by Deputy Inspector General of Police, SAF, Bhilai; order dated 28.11.2000 (Annexure P-4) passed by Additional Director General of Police, SAF, Police Headquarters, Bhopal; and order dated 20.8.2001 (Annexure P-5) passed by the Director General of Police, Police Headquarters, Raipur. By order dated 23.6.2000 (Annexure P-3) passed by the Deputy Inspector General of Police, SAF, Bhilai, the petitioner who was working as constable was dismissed from service whereas by order dated 28.11.2000 (Annexure P-4) the appeal preferred by him was rejected by Additional Director General of Police, SAF, Police Headquarters, Bhopal, and by order dated 20.8.2001 (Annexure P-5) the mercy appeal preferred by the petitioner was also dismissed by Director General of Police, Police Headquarters, Raipur. 2. Facts of the case in brief are that at the relevant time the petitioner was working as constable and posted at 33 Battalion, SAF, Bhilai. On 30.12.1997 the petitioner was subjected to charge sheet containing the following two charges: ^- "^^^^'."-~.—~..""^3SXA£i^S4-ut-^' .^.'-t'^], /^.,<A^>^ ••^';.» ^•^/ •--.S.K&.t- "^ '~^ i) On 21.11.1997 the petitioner had put the 303 loaded rifle on the chest of constable Dev Kumar and thereby threatened him to do away with; and ii) He displayed indiscipline by acting in violation of the MP SAF Act and M.P. Civil Services Conduct Rules, 1965. 3. The petitioner submitted his reply to the above-mentioned charge sheet on 8.1.1998 denying both thechargeslevelled against him. One G.R. Thakur, Assistant Commandantof 33rd Battalion, SAF Bhilai was appointed as enquiry officer, which was duly conceded to by the petitioner. Thereafter, regular departmental enquiry was conducted against the petitioner in which the department examined as many as nine witnesses in supportof its case including complainant Dev Kumar whereas the petitioner did not examine any witness but made rebuttal to the statements made by the witnesses of the department. Enquiry Officer submitted his report on 30.5.1998 and the charges levelled against the petitioner were found proved. Vide order dated 16.8.1998 (Annexure P-6), the disciplinary authority punished the petitioner by withholding two increments with non-cumulative effect for a period of two years. On 1.2.1999, theorder of the predecessor commandant came to be modified by the successor commandant and major punishment of dismissal from service was imposed on the petitioner vide Annexure P-1. Dismissal order was challenged by the petitioner by way of appeal before the DIG, SAF, Bhilai on the ground that the Commandant could not have reviewed its own order and therefore the order dismissing the petitioner from service was held to be bad. The DIG, SAF Bhilai set aside the order dated 1.2.1999 passed by the successor Commandant and directed for forthwith reinstatement of the petitioner. By the same order DIG, SAF Bhilai also set aside the order dated 16.8.1998 by which the petitioner wassubjected to imposition of punishment of withholding two increments for a period of two years with non-cumulative effect on the ground that it was not proportionate to the act attributed tothe petitioner. DIG, SAF also directed for issuance of notice to the petitioner asking him to submit the reply thereto within a period of seven days there-from making it clear that if the reply is not submitted within the time stipulated, it would be deemed that the petitioner had nothing to say and the matter would be decided finally. —%• The petitioner submitted his reply on 25.3.2000 and after receiving the reply, vide order dated 23.6.2000 (Annexure P-3) the DIG imposed the punishment of dismissal of the petitioner from service saying that the reply of the petitioner was not satisfactory. This order of DIG was assailed by the petitioner in appeal before the Additional Director General of Police, SAF, Bhopal and after considering the factsinvolved therein, vide order dated 28.11.2000 appeal was dismissed and order passed by the DIG, SAF, Bhilai dismissing the petitioner from service was maintained. Subsequently, in mercy appeal, the Director General of Police vide order dated 20.8.2001 (Annexure P-5) also maintained the orders passed by the Additional Director General of Police and the Deputy Inspector General of Police, SAF, Bhilai. 4. Counsel for the petitioner submits that the petitioner was not even supplied the copy of the charge sheet and the enquiry report and even during enquiry he was not afforded sufficient opportunity of putting forth hiscase, as is required under the law. He submitsthat while allowing the appeal ofthe petitioner on 20.1.2000 (Annexure P-2) the appellate authority i.e. DIG, SAF, Bhilai has exercised two powers i.e. allowing the appeal of the petitioner and then exercising the revisional power as well issuing the show cause notice to the petitioner as to why he be not dismissed from service. He further submits thatthe DIG, SAF, Bhilai should have confined himselfto the order dated 1.2.1999 (Annexure P- 1) and should not have set aside the order dated 16.8.1998 (Annexure P-6). He submits that while deciding the appeal of the petitioner, the appellate authority has not passed a reasoned order and just in a mechanical manner the appeal of the petitioner has been decided. Lastly, he submits that the punishment imposed on the petitioner is dispropbrtionate to the alleged misconduct and therefore the same may be reduced in the interest ofjustice. 5. Replying to the argument of the counsel for the petitioner, it is submitted by the counsel for the respondents that copy of the charge sheet was duly supplied to the petitioner on 30.12.1997 and the acknowledgement of the same is there on the original record. He submits that the petitioner was fully satisfied with the enquiry as he was y^ ^' '°< SWTiSS^'','^ ?'; "sasi»j l?i 'saiasss- -<'/— given full opportunity to examine and cross examine the witnesses. According to the counsel for the respondents, the petitioner had also expressed his satisfaction with regard to the enquiry by his letter which is also on record. He submits that as the petitioner was involved in grave misconduct, appellate authority was fully justified in enhancing the punishment imposed on the petitioner. He submits that fairness on the part of the department could be seen by the fact that initially the petitioner was subjected to minor punishment of withholding two increments for a period of two years with non-cumulative effect by the Commandant and when the successor of the Commandant had passed the order reviewing the earlier order passed by the predecessor commandant and imposed major punishment of dismissal from service, the appellate authority set aside the said order passed by the commandant and then after giving due opportunity to the petitioner fresh order was passed dismissing him from service. He submits that the superior authority i.e. DIG had sufficient power under Rule 29 ofthe of Madhya Pradesh Civil Services (Classification and Control) Rules, 1966 to review any order passed by the subordinate authority on its own motion or on an application made for the purpose. He submits that the appellate authority i.e. Additional Director General of Police has also passed the well reasoned order while deciding the appeal of the petitionerand it was not required to give elaborate and extensive order because it has just affirmed the order passed by the disciplinary authority. In support of his argument counsel for the respondents placed his reliance on the decision of the Supreme Court in the matter of Oriental Bank of Commerce andanother v. R.K. Uppal reported in (2011) 8SCC 695. It is argued that act of the petitioner was as such ttiat no leniency cou'd be shown to him because being a police constable it was expected from him to maintain discipline in a proper manner but in this case he has acted in a most irresponsible manner by putting a loaded 303 rifle on the chest of the complainant. He submits that even if it is accepted that copy of the enquiry report is not supplied to the- petitioner, he has utterly failed to plead as to what prejudice would be caused to him because ofsuch non-supply ofthe same. .-'"•^. <.!( \^ —s-. 6. Heard counsel for the parties and perused the material available on record including the original record produced by the State counsel. 7. Before proceeding further, a reference to Rule 29 of the of Madhya Pradesh Civil Services (Classification and Control) Rules, 1966, appears necessary, which reads as under: 29. (1) Notwithstanding anything contained in these rules except Rule 11,- (i) the Governor, or (ii) the hlead of a Department under the State Government, in the case of a Government servant serving in a department or office (not being the secretariat), under the control of such head of a Department; or (iii) the appellate authority, within six months of date of the order proposed to be reviewed; or (iv) any other authority specified in this behalf by the Governor by a general or special order, and within such time as may be prescribed in such general or special order; may at any time, either on his or its own motion or otherwise call for the records of any inquiry and review any order made under these rules or under the rules repealed by Rule 34 from which an appeal is allowed, butfrom which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may - (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) remit the case to the authority which made the order to or any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances ofthe case; or pass such other orders as it may deem fit: Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against t he penalty proposed and where it is proposed to impose any of the penalties specified in Clauses (v) to (ix) of Rule 10 or to enhance the penalty imposed by the order sought to be reviewed to any ofthe penaltiesspecified in those clauses, no such penalty shall be imposed except after an enquiry in the manner laid down in Rule 14 (2) (i) (ii) - 6- [......] and except after consultation with the Commission where such consultation is necessary: Provided further that no power to review shall be exercised by the Head of Department unless:- (i) the authority which made the order in appeal; or (ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him. Explanation I. The powers conferred on the Governor under this sub rule shall in the case of a Class III or Class IV Government servant serving in a District Court or a Court subordinate thereto be exercised by the Chief Justice. Explanation II. The powers conferred on the Governor under this rule shall, in the case of Judicial Officers be exercised by the High Court. No proceeding for review shall be commenced until after- the expiry ofthe period of limitation for an appeal, or the disposal of the appeal, where any such appeal has been preferred. (3) An application for review shall be dealt with in the same manner as if it were an appeal under these rules. 8. From all this, it is clear that the DIG while passing the order dated 23.6.2000 has acted strictly in accordance with the provisions of Rule 29 referred to above and that he was fully empowered to pass the said order. This Court finds no force in the argument of the counsel for the petitioner that DIG could only have set aside the subsequent order passed by the successor commandant imposing major punishment of dismissalof the petitioner from service and it should not have disturbed the earlier order passed by the predecessor commandant. Once an authority has the power to examine the entire report, under the Rule he is also empowered to impose major punishment. The record further makes it clear that before passing the order the DIG had issued show cause notice to the petitioner and after considering his reply the order was passed. This Court further finds no force in the argument of the counsel for the petitioner that he was not supplied with the copy of the charge sheet because the original record goes to show the petitioner's endorsement which makes it clear that copy of the charge sheet was duly supplied to him. So far as non supply of enquiry report to the petitioneris concerned, though in the record no such acknowledgement could.be found yet the fact remains that it is not the case of the petitionerthat because ofnon supplyofthe enquiry report any firejudice has b6en caused to him. Petitioner has nowhere pleaded and proved as to what prejudice has been caused to him because of such non- •^-^ ;^ —-7— supply of the enquiry report. Thus even assuming that the copy of the enquiry report was not supplied to the petitioner, he cannot derive any benefit from the same as the position would have remained the same even if the enquiry report was supplied to him. This Court also finds no force in the argument of the petitioner that the appellate authority has not passed a detailed order. From the memo of appeal and the order passed by the appellate authority it is apparent that just and proper order has been passed by the appellate authority while confirming the order passed by the DIG. It is true that the appellate authority must record reasons in support of its order to indicate that it has applied its mind to the grounds raised but it is not the requirement of law that an order of affirmance by the appellate authority must be elaborate and extensive. Brief reasons which indicate due application of mind in the decision making process may suffice. Thus it cannot be said that the appellate authority has passed the order in a mechanical manner. This Court also finds no force in the argument of the petitioner that act of the petitioner was as such where a lenient view could have been taken while imposing punishment on him as the punfshment of dismissal from service is disproportionate to the act attributed against him. In this case the petitioner was an employee of the police department and that being so he was expected to be more vigilant than others in offering due protection to the public at large rather than indulging in nefarious activities as is said to have happened in this case. 9. Having thus analyzed the matter in depth, this Court is of the considered opinion that the orders under challenge in this petition are just and proper and do not call for any interference by this Court. Petition thus being without substance is liable to be dismissed and it is dismissed assuch. r- f Sd/- pritinker Diwaker Judge rti ii:i^s ;i!-i"-—~ '^ ^S.-^^^"Smc'°EA^-"W^|''^,^