BEFORE THE HON’BLE M P STATE ADMINISTRATIVE TRIBUNAL RAIPUR BENCH ’ l3, L‘WLW (/1 7&(Q/aw , OA NO. [2002 .............. APPLICANT.......... .............. SHRI J.K.S.RANA COMPULSORY RETIRED PLATOON COMMANDER S/O SHRI LAKHAN SINGH KSHA'IRI YA, BEHIND BALTI FAcmRmORAPARA BILASPUR[C.G.} VERSUS z 1 STATE OF CHHATISGARH THROUGH THE SECRETARY DEPARTMENT OF HOME, DKSBHAWAIxLGEROAD RAIPUR[C.G.] 2.INSPKI'IOR GENERAL OF POLICE POLICE HEADQUARTER G,E,ROAD RAIP‘UR 3.DEPUI‘Y.INSPERCI‘OR GENERAL OF POLICE; CHHATISGARH SHASHI‘RA EAL BI-IILAI DIST-DURG. 4. DEPUTY INSPECTOR GENERAL OF POLICE BILASPUR RANGE, v HLASPICGJ. M 5. mMMANDENT, VISPESH SHASHTRA BAL v BHILAI ,HST—DURG ‘ APPLICATION UIS. 19 OF ADMINISTRATIVE TRIBUNAL ACT k/w PARTICULARS OF THE APPLICANT As Show in wuse Title. - 2. PARTICULARS OF TI—E mN-APPLICN‘JTS PX/ NONAPPLICANTS .. GARH BILASPUR HIGH COURT OF CHHATTIS , Writ Petition ‘5) No.47sszzoo5 ORDER 43 POST ON $ MAY, 2010 Shfi J.K.s. Rana PETITIONER: Versus and others RESPONVDENTS: State of Chhattisgarh \ PETITIONER: Shri J.K.S. Rana \ RESPONDENTS: Versus State of Chhattisgarh and athers Present: ORDER (Passed on ia May, 2010) Police, S.A.F./respondent No.3 cancelled the aforesaid order vide its order dated 27.1.2000 and held enquiry on the same charges after almost 5 months. The enquiry culminated in an enquiry report, which Was forwarded to the Deputy Inspector General of Police, S.A.F/respondent No.3. Vide notice dated’22.6.2001 (Annexure A-S), petitioner-Was required to submit his representation. Along with said notice, a copy of inquiry report was also forwarded to the petitioner. Petitioner submitted his reply/representation on 19.7.2001 (Annexure A-6) in response to the aforesaid notice dated 22.6.2001 Finally impugned order (Annexure A-1) was passed on 22.8.2001 by which a penalty of compulsory retirement was imposed on the petitioner. Petitioner preferred a departmental appeal which too was dismissed by the Inspector General of Police vide his order dated 12.2.2002 (Annexure A—8). . Assailing the legality and validity of the impugned order of penalty, learned counsel for the petitioner contends that initially, after issuance of charge sheet, petitioner submitted his reply and considering the same, an order of imposition of minor penalty was passed on 6.9. 1999 (Apnexure A—2) by the Disciplinary Authority. After the petitioner had already undergone the penalty and suffered the order, the same was illegally cancelled without affording an opportunity of hearing to the s petitioner. This action of cancellation of the earlier order of punishment and holding enquiry on the same charges again, resulting in imposition of major penalty is i11egal and violative of provisions contained in Regulation 270 of the Police Regulations. According to learned counsel for the petitioner, petitioner suffered double jeopardy. It has also been argued that while passing the impugned order on 22.8.2001 (Annexure A—l), without affording an opportunity to explain and offer his explanation, previous record of the petitioner was taken into consideration, wherein it was recorded that earlier 22 minor and 1 major penalty were imposed and by imposing minor penalty, though opportunity of improvement was afforded, the petitioner failed to improve and rendered himself liable for the penalty of compulsory retirement. This action is therefore violative of Article 311 (2) of the Constitution of India. It is urged that the Enquiry Officer has found the charged partly proved, Disciplinary Authority to that extent disagreed, in recording a finding that the charges are proved. No reason were recorded by the Disciplinary Authority for such disagreement which is violative of provision contained in Rule 15 (2) of the M.P./C.G. Civil Services (Classification, Control 85 Appeal) Rule, 1966 (henceforth “the Rules of 1966”). It is also argued that before change of Enquiry Officer, no notice was given to the petitioner and therefore the action of respondent authorities is most unreasonable. Learned counsel for the petitioner contended that when the petitioner preferred an appeal, there was no proper consideration of various grounds raised in appeal by the Appellate Authority and the Appellate Authority by a Cryptic order dated 12.2.2002 (Annexure A-9) confined its consideration only with regard to the quantum of punishment. While taking into consideration the past records, the appeal of the petitioner has been dismissed without application of mind to various grounds urged in the impugned order of penalty. It is lastly submitted that taking into consideration the nature of allegations, gravity of misconduct facts and circumstances, penalty of compulsory retirement is grossly disproportionate to the charges. In support of his contention, learned counsel for the petitioner placed reliance on the i judgments of Supreme Court in the cases of The State of Mysore Vs. K. Manche Gowdal, The State of Assam and anothef Vs. J.N. R93 Biswasz, Murari Mohan Deb Vs. Secretary to the Govt. of India and others3, Mathura'Prasad Vs. Union of India and Ors.4, M.P. State Agro Industries Develoyment Corgn. Ltd. and another Vs. Jahan Khans, Kanailal Bera Vs. Union of India and others5 & Punjab National Bank and Ors Vs. Sh. Kunj Behari Misra7 Referring to the pleadings made in the return filed by the respondents on 30.8.2002 and 17.4.2008, learned counsel for the respondents contends that a proper enquiry was held by giving due and proper opportunity of hearing to the petitioner. There is no violation of any statutory provision relating to conduct of enquiry in the present case. It is further submitted that the finding of guilt has been recorded on the basis of evidence on record and it is not a case of no evidence. The appeal of the petitioner was duly considered by the Appellate Authority, who took into consideration the previous records of the petitioner and upheld order of penalty upon due application of mind to the records of the enquiry as reflected from the order dated 122.2002 (Annexure A—8). In the reply (Annexure R-l) to the charge sheet submitted by the petitioner annexed along with return dated 17.4.2008, petitioner admitted consumption of liquor. Though Commandant imposed a penalty of withdrawing one increment for a period of one year, upon scrutiny, Deputy Inspector General of Police, S.A.F., Bilaspur, vide order dated 27.1.2000, considering the gravity of misconduct, cancelled the earlier order of punishment dated 16.9.1999 and directed a fresh enquiry by appointing a Deputy Commandant as Enquiry Officer. 1 AIR 1964 sc 506 2 AIR 1975 sc 2277 3 AIR 1985 sc 931 4 (2007) 1 scc 437 5 (2007) 10 scc 88 6 (2007) 11 scc 517 7 JT 1998 (5) 548 l‘iv It is argued. that consistent with the requirement of Regulation 270 of the M.P./C.G Police Regulations, While ordering fresh enquiry, petitioner was given due opportunity of hearing and copy of enquiry report was supplied and thereafter another notice was given inviting petitioner’s comments/representation and only thereafter, the final order was passed. The order of punishment is therefore not in any manner violative of Regulation 270 of the Police Regulations. Referring to the provisions contained in Regulation 225 of the Police Regulations, it has been submitted that While taking decision with regard to quantum of punishment, the Authority was entitled to take into considerations the character, antecedents, length of service of the petitioner. It is submitted that the Authority was empowered to cancel the earlier order. Taking into consideration that the petitioner is habitual of committing misconduct and was punished 3O times in his service career, a major penalty of compulsory retirement was imposed. It is argued that petitioner is estopped from challenging the earlier order dated 27.1.2000 by which the earlier order dated 16.9.1999 was cancelled. Petitioner did not challenge the said order, but acquiesced in it and fully accepted the same and participated in the enquiry. It was only when the final order of penalty was imposed vide order dated 22.8.2001 that the petitioner started disputing the correctness of the said order. It is argued that the order of minor penalty was violative of Rule 14 (5) (a) of the Rules of 1966, as the petitioner only partly admitted the charges. The occasion to record finding did not arise as the petitioner had not admitted the charges relating to filthy language hurled by him in the state of intoiiication and he only admitted consumption of liquor“ In such a situation, it was obligatory to hold proper enquiry and the order could not have been passed without enquiring into allegation regarding use of filthy language against his senior officer by the petitioner. It is next urged that it is not a case of double jeopardy inasmuch as the earlier order of penalty was cancelled and the petitioner’s increments were not affected and, thereafter, in the detailed enquiry, finding charges proved, major penalty was imposed. It is further submitted that it is always open and rather appropriate for the Competent Authority to consider previous records which is reflected from the provisions contained in Regulation 225 of the Police Regulations. In any case, petitioner did not suffer any prejudice inasmuch as the factual details regarding previous records as mentioned in the impugned order have not been disputed by the petitioner and such fact is fully established from the details of the punishments (Annexure R—2) filed along with the return dated 17.4.2008. Thus, no prejudice can be said to have been caused to the petitioner. 5. In support of their contentions, learned counsel for the respondents have relied upon the decisions of the Supreme Court in the matters of Kailash Chandra Agarwal Vs. State of Madhya Pradesh and anothers, State of U.P. Vs. Harendra Arora and another9, Govt. of India 85 Anr. Vs. George Philip“), State of M_egha1aya 85 01's. Vs. Mecken Singh N. Mai-ak” & Oriental Insurance Company Ltd. Vs. S. Balakrishnanlz. x 6. I have heard learned counsel for the parties and perused the records. 8 AIR 1987 SC 1871 9 AIR 2001 SC 2319 - 1° AIR 2007 SC 705 11 AIR 2008 SC 2862 12 AIR 2001 SC 2400 . The foremost contention to assail the legality and validity of detailed enquiry and consequent decision of major penalty of compulsory retirement is that the Deputy Inspector General of Police, S.A.F., Bilaspur While cancelling earlier order of punishment dated 16.9.1999 (Anncxure A—3), Vide its order dated 27.1.2000 (Annexure A—4) acted in utter violation of provisions contained in Regulation 270 of the Police Regulations. Referring to the provisions contained in proviso appended to Regulation 270 of the Police Regulations, it has been argued that though the Revisional Authority is empowered to suo motu revise the order of punishment or may remit, Vary the order of punishment, exonerate, enhance, order recording of further evidence, order fresh enquiry, however, no such order could be passed unless the delinquent is issued a notice and afforded an opportunity of hearing. No such notice was served on the petitioner as mandatorily required under the aforesaid provision, therefore, the. order dated 27.1.2000 directing detailed enquiry and all consequential proceedings and order are vitiated. Issuance of notice and affording of opportunity of hearing is sine qua non for exercise of power under regulation 270 of the Police Regulations. As the provision incorporate principles of natural justice, tha same must be treated to be mandatory, Violation of which has resulted in vitiating the enquiry and the impugned order of punishment. Learned counsel for the respondents advanced submission that this ground of challenge is not available to the petitioner inasmuch as, firstly, no such grounds has been taken by the petitioner in his petition and secondly the statutory right, if any, the petitioner had under Regulation 270 (2) of Police Regulation of being heard before cancellation of earlier order of punishment and detailed enquiry, the same has been waived. Vi”) It is submitted that there is neither any pleadihg nor any material on record to show that the petitioner ever raised any objection or dispute with regard to correctness and validity or order dated 27. 1.2000 either at the time when it was passed or at any time during the conduct of detailed enquiry nor in his reply to show cause notice when copy of enquiry report was served upon him. Even in the appeal preferred against order of penalty dated 22.8.2001, no such ground has been urged. . From the pleadings in the petition, it is found that though the petitioner has referred to order dated 27.1.2000, there is neither any pleading nor any ground to assail the legality and validity of order dated 27. 1.2000. ’l‘he petitioner has not even placed on record order dated 27.1.2000. None of the ground raised in the petition raise this aspect of alleged violation of Regulation 270 of the Police Regulations regarding non— issuance of notice and opportunity of hearing. It was only when in the return, respondents referred to the provision of Regulation 270 of the Police Regulations in reply to petitioner’s pleadings that by way of rejoinder, [petitioner has alleged that without giving any notice, the earlier order of punishment dated 16.9.1999 was reviewed/revised. x Even then there is neither any pleading nor nay material to show that petitioner ever objected or.disputed the legality and validity of order dated 27.1.2000 by taking: recourse to any departmental remedy or remedy in a Court of law. It has neither been pleaded nor demonstrated from any records of enquiry that petitioner ever objected to the course of action adopted or lodged his protest on the ground that he should be heard by giving proper notice against proposed action of cancellation of earlier order of punishment and direction for detail enquiry on the charges of misconduct. {:43 \ 9. Learned counsel for the respondents has strenuously argued that the petitioner having waived his right of being heard and having raised no objection against revising of earlier order dated 16.9.1999 and having participated in the detailed enquiry, acquiesced in the action of the respondents. Even in reply to show-cause notice, no such objection was . raised. Even before this Court, legality and validity of order dated 27.1.2000 has not been assailed. 10. In substance, the argument of learned counsel for the respondents is that present is a case of waiver and the petitioner could not assail action on the ground that no opportunity of hearing was afforded to him. In View of the conduct of the petitioner in participating in the detailed enquiry after suo motu revision of the order dated 16.9.1999 in exercise of power under Regulation 270 of the Police Regulations, petitioner, though not expressly, by his conduct waived such a right. Now at this stage, petitioner cannot be permitted to claim such right of hearing by raising this issue for the first time in his rejoinder. Waiver in the present case, in View of what has been observed hereinabove, is clearly implied by conduct. Every person is presumed to know his right. Petitioner held the post of Platoon Commander. The provisions of Regulation 270 of the Police Regulations are presumed to have been in the knowledge of the petitioner as also a right to heard through a notice as contemplated in the proviso to Regulation 270. The petitioner’s conduct in neither taking any departmental remedy or remedy before a Court of law against order dated 27.1.2000, raising no protest and submitting himself to the detailed enquiry, taking no exception on such a ground of non—issuance of notice in reply to the show cause notice, not even taking any such ground either in the departmental appeal nor " before this Court nor making any prayer for quashing order dated 11 beneiit of the individual concerned, therefore, he can waive that right. In other words, this section casts a duty on the ofiicer to issue notice to the person concerned of the proposed action to be taken. This is not in the nature of a public notice nor any person other than the person against Whom the proceedings are initiated has any right for such a notice. Thus, this right of notice being personal to the person concerned, the same can be waived by that person. 16. If the above position in law is correct, which we think it is, M/s Virgo Steels, having specifically waived their right for a notice, cannot now be permitted to turn around and contend that the proceedings initiated against them are void for want of notice under Section 28 of the Act, so as to frustrate the statutory duty of the Revenue to demand and collect customs duty which M/s Virgo Steels had intentionally evaded.” Further in the case of Krishna Bahadur Vs. Purna Theatre and others” , it was held as under: “10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.” l2. In view of the above discussion, this Court comes to the conclusion that petitioner having waived his right to notice and having submitted to the detailed enquiry proceedings, without calling in question order dated 27.1.2000 throughout the enquiry nor having claimed any such relief in this petition, much less seeking any relief 14 (2004) 8 scc 229 12 for quashing order dated 27.1.2000, the same‘not even brought on record, petitioner cannot be permitted to assail the legality and validity of the action on the ground of violation of principles of natural justice and on the ground of non—issuance of notice and opportunity of hearing as envisaged under proviso to Regulation 270 of the Police Regulations. Even otherwise, in View of provision contained in Rule 14 (5) (a) of the Rules of 1966, after receipt of Charge sheet, petitioner though admitted consumption of liquor, other allegations were not admitted, it was incumbent on the part of the Disciplinary Authority to take recourse to the detailed enquiry of examining prosecution documents and witnesses to bring the enquiry to its logical conclusion as to Whether the allegations of misbehaviour, abuse and threat were proved. Petitioner has clearly come out with a case that he had Only admitted the allegation with regard to consumption of liquor and other charges were denied. 13. In this View of the matter, the Revisional Authority did not commit any illegality in suo moto revising order dated 16.9.1999. In the case of MA Cr Mehta Vs. Union of India and ors.15 negativing the contentions that the impugned order is liable to be set aside on the ground of ) violation of the principles of nature justice, it was held as under :— “15. It is true that whenever there is a clear violation of the principles of natural justice, the courts can be approached for a declaration that the order is void or for setting aside the same. Here the parties have approached this Court because the orders of the Department were consequential to the orders of this Court. The question however is whether the Court in exercise of its discretion under Article 32 or Article 226 can refuse to exercise 15 (1999) 6 scc 237 13 discretion on facts or on the ground that no de facto prejudice is established ...... 16. Courts are not infrequently faced with a dilemma between breach of the rules of natural justice and the Court’s discretion to refuse relief even though the rules of natural justice have been breached, on the ground thatno real prejudice is caused to the affected party. 17. ....... This Court refused relief and agreed that the High Court was right in not interfering under Article 226 even if there was violation of naturaljustice. Subba Rao, J. (as he then was) observed (at SCR p. 189) as follows: “Both the orders of the Government, namely, the order dated 7-3-1962, and‘that dated 18—4—1963, were not legally passed: the former, because 'it was made without giving notice to the Panchayat Samithi, and the latter,‘ because the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village.” (emphasis supplied) His Lordship concluded as follows: “In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated 18—4-1963? If the High Court had quashed th'e said order, it would have restored an illegal order —— it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case.” The above case is a clear authority for the proposition that it is not‘always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The 14 Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in Violation of the principles of natural justice or is otherwise not in accordance with law. 21. it is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of the principles of natural justice. " contained in Rule 14 (5) (a) of the Rules of 1966, the course of action adopted by the Disciplinary Authority at first instance in hushing—up allegation of misconduct by passing final order on 16.9.1999, it is clear that it is a case where only one course of action was possible and permissible under the rules. Therefore on this consideration also, petitioner is not entitled to any relief on the ground that before revising the earlier order of penalty dated 16.9.1999, revisional authority did not give the petitioner a notice and opportunity of hearing. In such exceptional case of forgone conclusion, Court may not be inclined to principles of natural justice as held by the Supreme Court in the case of State of Manipur 8a others vs. Y. Tokan Singh 8a Others“. 15. Petitioner has also assailed legality of the entire proceedings drawn after suo motu revision of earlier punishment order dated 16.9.1999 on the ground that once a final order was passed, petitioner was subjected to penalty, the matter was closed and it was not permissible to re—open the whole case again and pass fresh order of penalty by holding a detailed exercise discretion to grant relief only on the ground of violation of > f ‘6 (2007) 5 SCC 65 14. As has been discussed above, with reference to the statutory provision 15 $5 r f U enquiry as this is not permissible under the law as also on the ground that this amounts to subjecting petitioner to double jeopardy. To lay support to his submission, learned counsel for the petitioner has placed reliance on the judgment of Supreme Court in the case of The State of Assam and another (supra). In the aforesaid case, on the charges of misconduct, a departmental enquiry was conducted wherein findings adverse to delinquent employee were recorded, whereupon a show cause notice proposing penalty of dismissal was issued. Thereafter, an order of reinstatement was passed. As no reasoned findings were recorded, successor in the offlce recommended reopening of the case on the opinion that from the materials of the case, the delinquent merited punishment. This led to de novo recording of evidence which was challenged by filing a petition on the submission that there was no power to re—open a case concluded by exoneration and reinstatement V and further that illegal vexation of a second enquiry should be arrested. The Supreme Court held that no rule of double jeopardy bars but absence of power under a rule inhibits a second enquiry by the Disciplinary Authority after the delinquent had once been absolved. It was held as under: > “4. We may, however, make it clear