•» 1 w THE MAWrA PRABESH AEaUNISTaAriVE TffBBS^JABALPUa BENSH riiEEH PralEash Bhax Biwar -;AND . • ^°f^2'o< State of Kadihya Pradesh Throuigh Seeirtary to Qovt. W»P. Hone BiapartmAnt <? BETAILS OF APPLXCATION i I* Particulars efthe applleant t Snt. /<' (,M .'P '•I'he IniBT.ecto .i.l^'s @ ••iill£'siT>ur •'•onSs ilil''8t)ur U''i»P» i!ln:f3nurUlvlstnni> fllle8T>ur, W,P« Siwa'-lntBndent of Pollca iitlesr'ur j&L&.lS^ti ill-i^-oi-wf? ^lles^ur^ M°P° :;!j| ; i :f)( il ^' P ^ ^B !ti<r^l6B^a^^5 ^Asto''-—-;^.—tUi )' '<^.'Ll';^: r-~I~~"~~^—'Z.:'.-^''l* Hl' A'~£S'J !53i?~-F"S;$aa5BS:-33t®S'S'PS 1s c» reci.sd Sfreinst tha li; inexun-A/l,) Tisssed fc^r tha OeTiufcir Pol 1 oo t>T3 •'snur tftfta.. FO.&) end a iirnuRnart dated 2.5.5.90 {.AnniBxui«~A/6) Bassec) ty- S'-a InSnseto r* Genrsl ofFolioe Bn sanur2.-,n®^flSlESnur (RiiB.Ho .3). &otb Sbe liBnugned orde'? bCT-® besn nassed on tha b^ls ofphsr-ges sp'elBS'i; ths s»'nllc<nt fr'.' 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Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 305 of 2005 PETITIONER RESPONDENTS VERSUS Prakash Dhar Diwan State of Madhya Pradesh and others Post for pronouncement oforder on /3.12.2011 Sd/- Pritinker Diwaker Judge .^ 4!, ":>3, f ^( HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 305 of 2005 PETITIONER RESPONDENTS VERSUS Prakash Dhar Diwan State of Madhya Pradesh and others Shri B.P. Gupta counsel forthe petitioner. Shri A.V. Shridhar PL for the respondents. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA ORDER (/j.12.2011) Challenge in this petition is to the order dated 30.4.1990 (Annexure A-1) passed by the Deputy Inspector General of Police, Bilaspur (DIG for short) and the order dated 23.6.1990 (Annexure A-6) passed by the Inspector General of Police (IG for short). By order dated 30.4.1990, the petitioner has been removed from service whereas by order dated 23.6.1990 the appeal preferred by the petitioner against the order of removal has been dismissed by the IG. 2. Facts of the case in brief are that when the petitioner was working as Constable in the Police Department, on the basis of newspaper clipping (Annexure P-2) dated 14.3.1989 a preliminary enquiry was conducted by the SDO (P) Gorela, giving a categorical finding against the petitioner and one Dilram Singh ASI for their involvement in the alleged misconduct and thereby recommending departmental enquiry against them. Pursuant to the preliminary enquiry, a decision was taken by the department to conduct a regular departmental enquiry against the petitioner and on 27.10.1989 a charge sheet containing two charges was issued by the Superintendent of Police, Bilaspur. The first charge against the petitioner was that while working as police constable at police station Pasam (Chowki Korbi) he demanded Rs. 10,000 from Phinuram, his brother Sajuram and son Lalsai and received Rs. 3000 from Sajuram. Second charge against him was that •^ y —•2— he used to threaten the aforesaid three persons to come to police station. Reply to the charge sheet was submitted by the petitioner on 11.12.1989 denying both the charges levelled against him. On 20.12.1989 SDO (P) Mungeli was appointed as Enquiry Officer and thereafter regular departmental enquiry was conducted against the petitioner. The enquiry officer gave his report on 6.2.1990 holding that the charges were not found to be proved. Dis-agreeing with the findings of the enquiry officer, a show cause notice was issued to the petitioner on 20.3.1990 by the DIG, Bilaspur. Reply to the said show cause notice was submitted by the petitioner on 11.4.1990 stating that the witnesses to the departmental enquiry have not supported the allegations made against him and the enquiry officer has already given his finding exonerating him from the charges made against him. After considering the reply ofthe petitioner vide order impugned dated 30.4.1990 (Annexure A-1) DIG Bilaspur found the charges against the petitioner duly proved and passed the order of punishment removing him from service. The order passed by the DIG Bilaspur was assailed by the petitioner by way of appeal (Annexure A-5) and on 23.6.1990 the appellate authority i.e. IG Bilaspur dismissed the appeal of the petitioner. 3. Counsel for the petitioner submits that in the departmental enquiry the witnesses have not deposed anything against the petitioner and therefore the enquiry officer submitted its report in his favour but yet without there being any justification in disagreeing with the findings of the enquiry officer, show cause notice was issued by the DIG Bilaspur and though reply to the same was submitted by the petitioner, without considering the same the punishment of remova! from service has been imposed on him. He submits that the charges are not so grave that the service of the petitioner has been terminated. He submits that on almost similar facts ASI Dilram Singh was also subjected to departmental enquiry and then punishment was imposed which was later confirmed by the IG but when an application for review was filed before the IG, his punishment of demotion was reconsidered and it was reduced to censor. He submits that once the lenient view has been taken in respect of said ASI, the same view should be taken by this Couri: in respect of the petitioner also. He submits that the punishment imposed on the petitioner is shockingly v •-S. disproportionate which shakes the judicial conscience of this Court. According to the counsel for the petitioner, the appellate authority has not passed the detailed order and the appeal of the petitioner has been dismissed in a mechanical manner. According to him, it has not been mentioned in the order impugned as to under what provision the petitioner has been subjected to punishment of removal and on this count alone the petition deserves to be allowed. Counsel for the petitioner further submits that the witnesses of the departmental enquiry have not supported the case of the department and based on that only the finding was given by the enquiry officer in support of the petitioner and therefore on this ground also the petition deserves to be allowed. In support of his submissions, counsel for the petitioner placed reliance on the decisions of the Apex Court in the matter of M/s East India Commercial Co. Ltd. Calcutta and another v. Collector of Customs, Calcutta reported in AIR 1962 SC 1893 and in the matter of Additional Collector of Customs Calcutta and another v. M/s Best & Co. reported in AIR 1971 SC 170. He also placed reliance on the decision of Andhra Pradesh High Court in the matter of S. Yesudas v. Chief General Manager-cum-Disciplinary Authority passed inW.P. No. 10501/1991 decided on 28.2.1996. 4. Replying to the arguments of the counsel for the petitioner, it has been argued by the counsel for the respondents that enquiry was conducted after giving full opportunity to the petitioner and as many as six witnesses were examined at length. He submits that all the documents sought for by the petitioner were supplied to him and no objection was raised by him in this respect. According to him, appellate authority has passed the order on the basis of the grounds raised by the petitioner in appeal and as the appellate authority has confirmed the order passed by the DIG, it was not required to repeat all the details in the impugned order. He further submits that even if the provision under which the petitioner has been punished has not been quoted at all or quoted wrongly, it will not vitiate the entire proceedings. 5. Heard counsel for the parties and perused the documents available on record. 6. It is the settled legal position that the disciplinary authority has the full power to disagree with the findings given by the enquiry officer and the said authority after giving show cause notice to the delinquent can always take departmental action against him. In the case in hand also, disagreeing with the report of the enquiry officer dated 6.2.1990, the disciplinary authority had issued the show cause notice dated 20.3.1990, reply to the same was submitted by the petitioner on 11.4.1990 and after considering the facts and circumstances of the case the order impugned dated 19.4.1990 was passed by the DIG. This Court finds no force in the argument of the counsel for the petitioner that the charges levelled against the petitioner were not so grave and therefore the termination order could not have been passed. The charges levelled against the petitioner make it clear that they were of grave nature and more particularly when the petitioner was working as constable in the police department he is supposed to be the custodian of law. This Court further finds no force in the argument of the counsel for the petitioner that when in the case of ASI Dilram Singh a lenient view has been taken by the department, same view should also be taken with respect to the petitioner by this Court. If the department has taken some view with respect to ASI Dilram Singh, this Court is not bound to pass the similar order. This Court has to consider the documents produced by the respective parties and the law with respect thereto. It is not a case where on the face of the record, punishment imposed on the petitioner shakes the judicial conscience of this Court. Petitioner being a police constable was required to be more cautious while performing his duties and it is expected of him not to threaten or torture anyone rather he was required to protect the interest of such people. This Court also finds no force in the argument advanced on behalf of the petitioner that while imposing punishment the disciplinary authority has not quoted the provision under which the punishment has been imposed on him. Even if in the order impugned or the order passed by the appellate authority, the provision is not quoted, it will not make the same invalid on the basis of some other provision. It is a well settled law that ifan authohty has a power under the law, merely because while exercising the same, source of power is not specifically referred to or reference is made to wrong provisions oflaw, that by itself does not vitiate the exercise ofpower so long as the power does exist and can be traced to a source available in law. Moreover, no such ground has been raised by the petitioner and on this count also the argument of the petitioner after being taken note of is rejected. This Court also finds no force in the argument of the counsel for the petitioner that the witnesses of the departmental enquiry have not supported the case of the depari:ment. From the record it is apparent that the relevant witnesses have duly supported the 'base of the department. Statement of one Premnarayan Shrivas alone will not exonerate the petitioner from the charges levelled against him because said witness was also subjected to enquiry by his department. On merits, it is apparent that Sajuram and Lalsai have duly supported the case of the department though they were subjected to lengthy cross examination. Moreover, this Court is not sitting as appellate Court to undertake threadbare examination of the evidence and the scope of this Court under Article 226 can not be stretehed to that extent. The decisions cited by the petitioner being entirely on different set of facts are not of any help to the petitioner. From the facts it is apparent that the departmental enquiry was conducted sthctly in accordance with law and there is no infirmity in the same. Petitioner was afforded due opportunity of seeing the documents, examining the witnesses at length and that being so there is no violation of the provisions of natural justice. This Court further finds no force in the argumeht of the petitioner that the appellate authority has not passed the detailed order. Limited grounds taken by the petitionerin his appeal memo have been met by the appellate authority and looking to the facts and circumstances ofthe case, it cannot be expected of the appellate authority to pass a detailed order. It is true that the appellate authohty 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 the order of the appellate authority very much meets the requirement of law in the peculiar facts and circumstances of the case. 7. In the aforesaid view of the matter, the petition being withqyt-- substance is liable to be dismissed and it is dismissed as such^^ ..•^v^\yc^a" Vt^^e