M @y (E Singm wash IN THE HIGH COURT OF JUDICATURE AT BILASPUR, CHHATTISGARH w.P. No. 4o L$ {2004 PETITIONER Anil Tiwari, age 46 about years, S/o. Late Shri K.N. Tiwar‘i, Occupation: Govt. Service, Presently posted as Sub Inspector, Police Station Civii Lines, Bilaspur, R/o. Nir’aia Nagar, Biiaspur District Bilaspur, Chhattisgarh VERSUS State of Chhattisgarh, Through: The Secretary, Government of Chhattisgarh Department of Home Affairs” D.K.S. Bhawan, Mantralaya, Raip,ur, Chhattisgarh RESPONDENTS The Director General of Police, Police Head Quarter, Raipur, Chhattisgarh The Assistant Director General of Police (Discipline/Complaint), Police Head Quarter, Raipur, Chhattisgarh The Inspector General of Police, Bilaspur Range, Bilaspur, Chhattisgarh The Superintendent of Police, Raigarh, District Raigarh, Chhattisgarh The Superintendent of Police Bilaspur, District Bilaspur, Chhattisgarh d ': 139‘ P€titi0n€r HIGH COURT OF CHHATTISGARH AT BILASPUR W. P, N0. 4016 of 2004 Anil 'I‘iwari Versus Responéents State of Chhattisgarh 85 others #\ . Post fr ord€r on 2 0 Fabmaxy, 2007 Sd/- satjSh K' Agnihotri e / HYGH COURT OF CHHA’I'T!SGARH AT BILASPUR W, P. N0. 4016 0f2G04 Petitionar : Anil Tiwari Versus Respandents : State of Chhattisgarh & others Singk Bench: Hon’ble Mr. Justics satish K. Agnihoti'i. d‘w, \ Mr. Ranbir Singh Marhas, Advocate for tha Peiitionar. Mr. V.V,S. Murthy, De§uty Advocate, Gen€ra1 Wifh Ms. Sum'ta Jain, Paula} lawyer for the raspondmlts/ State. O R D E R (Passed m1 this 20 “day of February, 2007) By this petitien, the peiitioney chalienges the va}idity of the order dated 30.5.2001 (P/ 1), passed by the Supen'ntendent of Police, Rajgarh, Whereunder punishment of withholding of one morement with cumulative eEect, having the etfect on revision of pay and pension etc. was imposed arid the order dated 26.2.2003 (P/2), passed by the Secxetary, Govemmeot of Chhattisgarh, Department of Home Ad'airs, throegh the Assistant Director General of Police (DiseiplineiComplaint), Police Head Quarter, Raipur, Chhattisgarh, whereby the petition tiled by the petitioner was dismissed. The indisputable facts in nutshell are that the petitioner was working as Sub Inspector in Genera} Category in the Police Department. During his service, the petih‘oner was awarded a major punishment of Withholding of one increment with cumulative effect on finding him guilty of misconduct. The @ 4. The. praliminary enquiry was conducmd by the. Sub—Divisional (mica (Palica) and in th€ €11quiry he found that cut of 7 charges, charges No. 2, 3 and 6 were proved and charge N0; 7 was partly preved, whereas Charges No. 1, 4 mad 5 were not proved. 5. The Superintendent of Police did not agree with the fmdillg of the enquiry report on charge No. 5 and after notice, Ietumable in three days, held that charge No. 5 also proved against the /. o petitioner. The Superintendent of Police thereafter by me order dated 30.5.2001 (P/l} imposed punishment of Withholding of one increment with cumulative edect. 6. The petitioner preferred an appeal hefore the Inspector General of Police, which was dismissed. Thereafter, the petitioner preferred a mercy petition before the State Government, which was also dismissed, vide order dated 26.6.2003 (Pl 2). 7. The petitioner has‘ not averred any ground in the pleading. However, Shri Ranbir Singh Marhas, learned counsel appearing for the petitioner would submit the sole ground that the order of punishment of withholding of one increment with cumulative effect, passed by the Superintendent of Police was inccmpetent under the Regulation 221 of the M.P. Police Regulations. Learned counsel further contended that imposition of withholding of one increment with cumulative effect is a major penalty and the Superintendent of Police has no power to impose the same on the employees holding the post of Sub-Inspector. 8. Mr. V.V.S. Murthy, learned Deputy Advocate General with Ms. Sunita Jain, learned Panel lawyer appearing for the mg/ mspsndmlts/Stata’wauld submit that admitt€d1y withhalcling of one incremem with cumulativa aEect is a major penalty as is claar from th€ Regulaticns 214 of tha MP. Polica Rsgulations. Tha Suparintandent af Police can impose the punishmant as specifled in Ragulatimi 214 (i and iv) and R€g111ation 215 {a and b), £11 cam of tha Sub-inspector and Assistant Sub-Inspector. Laarnad counsel fairly concedes that the Droer passed by the Superinteildent of Police, Rajgarh suffers fmm jurisdictional error and is incompetent. Learned counsel would further submit that the jurisdictional error in passing the impugned order of imposition of pimishment of withholdiilg of one increment with cumulative eEect by an incompetent oilicer has been cured later or; by dismissal of the appeal. Thus, the order is valid aiid legal. 1G. l have heard learned counsel appeaiiilg for the parties and perused the pleadings and Iecords aiupended thereto. For proper appieciation of the dispute involved in this case, it is necessary to quote the relevant provisions i.e. Regulation 214, Regulation 215, Regulah'on 221 and Regulation 222 of the M.P. Police Regulations, which are as under : “214. Punishment — Kinds of — Without prejudice to the provisions of any law or any special orders for the time being in force, the following penalties may, for good and sufficient masons, be imposed upon any member holding a post in a Subordinate Police Service:- (i) Censure. {ii} Withholding of promotion. (iii) Withholding of increments of pay including stoppage at an ediciency bar or stagnation allowance. (iv) Reduction to a lower post or time scale or reduction to a lower stage in the time scale of pay for a spaciflcd period with furthar direction as to wh€ther or not tha membar of the Subordinate Police Service will earn incremems of pay or the stagnan'on allowance, as the case may be, during the pericd of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the further increments of his pay or stagnatiori allowance. m m XXX m 215. Pum'shment of non—gazetted otticers: In additioo to the above, the following penalties may be imposed 011 none gazetted (351mm:- (a) Fi11e to a11y amount not exceeding a month's pay. (b) Removal from ally odice of distinction or special emolumem. (c) Supersession. XXX XXX m m 221‘ Power of S.P.- An Assietant I11spector—Gex1eral or a Superiateadent exercises the following powers of punishment:- (a) Power to ietlict aily of the punishments specified in Regulations 214 to 217 on head constables and conatables. (b) Power to inflict on Sub-Inspectors and Assistant Sub- Inspectors, the penalties specitied in Regulation 214 (i) and (iv) or in Regulation 2 15 (a) and (b) or to withhold the increment of a Sub-Inspector and an Assistant Sub- Inspector for a period of one year from the date on which it fails due. (c) Power to reduce the pay of Sub-Inspector and an Assistant Sub-Inspector, 1{c—1] Power to inflict the punishment of censure on inspectors}. (d) Power to suspend any non-gazetted officer of police pending inquiry into his conduct. 222. Power of D.i.G.- A Deputy lnspectoi‘~General exercises the foilowing powers of punishment:- (a) Power ta suspend any non-gazetted oiiicers pending enquirias into their conduct. (b) Power to milict a31y ofthe punishments spaciiied in Regulations 216 and 217 on head constables and constables. (c) Powar to inflict on head constables, constables, Assistant Sub-Inspectors, Sub-Inspoctors and odicers of equivalent ranks any of the punishments specified in Regulations 214 and 215. 3[(d) Power to inflict on Subedar, Assistant Police H Prosecutors, Police Prosecutors Insyectors and o$cers of equivalent ranks any of the punishments specified in Regulations 214 and 215, other than the punishments for removal, dismissal or compulsory retirement from service] l' 11. l have. examined the above stated regulations and submissions l made by the parties. It is clear that the Superintendent of Police, Raigarh has power of imposing penalty of "Censure" as specined in Regulation 214 (i) and reduction to a lower post or time scale or reduction to a lower stage in the time scale of pay for a specified petiod with further direction as to whether or not the member of the Subordinate Police Service will earn increments of pay or the stagnation allowance, as the case may be, during the period of such reduction and whether on the expiry of such period the reduction will or will not have the etfect of postponing the further increments of his pay or stagnation allowance on the Sub-Inspector and Assistant Sub-Inspector. There is no menh‘on of Withholding of one increment with cumulative ed‘ect in Regulation 214. Thus, the same was supplemented by the Executive Instructions in Memo No, Pu. Mu, / 23B] 2/9 15 I 96, dated 28.5.1996 and in Memo No. PuMu,!2/ Nama/ "~2,’392/2000 Bhopal, Dated 24th April, 2000, wherein it is clearly provided that impasition of withholding of 01R mcmment with cumulative e§ect is a major panalty, Thé Hon’ble Supreme Court in its ordgr dated 25*11 Apn‘l, 1994 passed in State of Madhya Pradesh and others vs. Radhika Erasad Eubey (Civil Appaal No. 1232 of 1994) held as under:— “Fhe viaw of ths tribunal iii quashirtg the reduction of the a§peHant to a lower stage in time scale of pay for two yeays, later reduced to one year by the appellate oflicer terming it as a minor penalty equivalent to Withholding of increments and as a sequator holding the respondent entifled for consideration of promotion by the department committee as Circle Inspector after 1985, does not commend to us. In term, there of a / direction was issued to the departmental committee to review the case or the respondent. The View of the. Tribunal there on is obviously wrong. A major penalty continues to be a major penalty even though its a etfect in minimized to slip down to loss of emoluments for a shorter period. The Tribunal was therefore, wrong in directing the Departmental Promotion Committee to consider the oases of respondent for promotion as on 1985. We are therefore of the View that the said committee is not obliged to consider the case of respondent as directed. It is therefore, evident that imposition of withholding of one increment with cumulative eitect is a major penalty and the same cannot be imposed by the Superintendent of Police as per Regulation 221 read with 214 of the MP. Police Regulations. In Mysore state Road Tran5port Carporatian vs. Mirja Khasim Ali Beg and another and ether connected matterl, the Supreme Court hald that the ariginal order of dismissal of the mst mSpondants being without jurisdiction a11d as Such void and inoperative having béen giassad in coritiaventi01i 9f the provisions of Ariicle 311 (1) of the Consh‘tmion, tho order passed on appeal by the General Manager could not cure the initial defect. ' ‘V' 14. The Snore-me Court, while cousidering the issue asto whether the defect in the initial order can be cured by later point of time by order of a superior authority in the case of Badrinath vs. Government of Tamil Nadu and othersz, held in para 27, as under: - ) "27. This ilows from the general principle applicable to “consequential orders". Once the basis of a proceeding is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime - like the recommendation of the State and by the UPSC and the aoh'on taken thereon - would fall to the ground. This principle of consequentia} orders which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders‘ in other words, where an order is passed by an authority and its validity is being reconsidered by a superior authority (like the Governor in this case) and if before the superior authority has given its decision, some further action has been taken on the basis of the initial order of the .primaiy authority, then such further action will fall to the ground the moment the superior authority has set aside the primary order." 15. For the masons stated hereiuahove, it is held that subsequent orders, dismissiug the appeal of the petitioner, passed by the Inspector General of Police and passed by the State Government N 3».7 , do not cum tha initial defsct is. imposiu'oxl of withholding of one. hicyement with cumulative eifect by an incompatent authority. 16, As a yesult and for the discassions made hareinabova, this patim'on is allowed aiid the ordei‘ dated 30.5.2001 (P/ 1), passed by the. Suparintendont of Police, Raigarh and the order dated 26.2.2003 (P/Q), paased by the Sacretary, Government of Chhattisgarh, Bepax’tment of Home AEajrs, through the Assistailt Director General of Police (Discipline/Complaint), Police. Head Quaxter, Raipur, Chhattisgarh axe quashed. The petitioner shall be entitled to consequential benefits flowing from (mashing of the impugned orders, No order as to costs. l7. It is ordered accordingly. I. AIR 1977 SC 747 2. (2000) 8 SCC 395