Salk^. 1A MJa - l^JUC J.iLtej^ - itefey. ^s^s &^ JLSls&lt!" 'te^ lii&s (^^y-iSfaA£i&Jbyl •M*lt§ kihlit i^ &3h <^UJh>S)& B!^£ t&i^4jj.att M]<y^ •M'itJ ^th(,te SaMl^^L Sh *^J,^ - l^l^ k&m f£fb /° •^o /20 •10 & ^teJ. •J5 'ltJ iSl^lds - ^ j^p (0€9 (feljt^ tfcAiijE •i •S hi^ MA ^r tejteUJe Miy$ llh^ W^ x ^ ES^EBe ^ <&3&4i-je 66^-5/- -^ -^^ jQJirO-^C^^^^ IE5~Tii^3iw£iii3ji~3^MliTiMl'~EI"i^~'® n -p -f:- QD «--\ APPLiCANT RESPQNDENTS HIGH CGURT OF CHHATTiSGARH : BILASPUR WRIT PETITION (S) N0.3021/2005 Shyam Kumar Netam Versus State of Madhya Pradesh and others Sinale Bench: Hon'bJe Shri Manindra Mohan Shrivastava. J. FOR PRONOUNCMENT OF ORDER Sd/- Manindra Mohan Shrivastava Jude ^t HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.3021/2005 APPLSCANT Sb^m ^umar Netam Versus RESPONDENTS Stateof Madhya Pradesh and others Sinale Bench: Hon'bie Shri Manindra Mohan Shrivastava, J. Present: - Shri Rakesh Anthony, counse! for the petitioner. Shri Ajit Singh, Panel lawyer forthe State/respondents. ORDER (Passed on this 2^ dav of March, 2010) By this petition, the petitioner assails legality and validity of the order of punishment dated 18-06-1996 (Annexure A-6) passed by the SuperinSendent of Police, Dantewada and order passed in appeal on 18-10-1996 by the Deputy Inspector General of Police, Bastar Range, Jagdalpur (Annexure A-8). (2) While the petitioner was posted as Constable in Police Station, Dantewada, a charge sheet was issued on 08-08-1994 (Annexure A-1) levelling three charges of misconduct. Petitioner submitted his reply dated 03-^-1994 vide Annexure A-2> Thereafter. departmental enquiry was conducted and an enquiry report was prepared by the Enquiry Officer, Deputy Superintendent of Poiice, who found all the charges proved. On the basis of the order passed by the Enquiry Officer, a show cause notice was issued to the petitioner on 22-05-1996 (Annexure A-4). Petitioner submitted his reply dated 30-05-1996 (Annexure A-5). Thereafter, vide impugned order dated 18-06-1996 (Annexure A-6), penalty of dismissal from servjce was imposed. Aggrieved by the said order, the petitioner preferred an appeal vide his memo of appeal dated 08-07-1996 (Annexure A-7). The appellate authority namely Deputy Inspector Generai of Poiice, Bastar Range, Jagdalpur dismissed the appeai of the V: petitioner. Thereafter, the petitioner submitted an appeal/representation before the Inspector General of Police, Bhilaj, on 18-01-1997 (Annexure A-9). During the pendency of the instant petition, Inspector General of Police passed an order dated 19-06-1998, by which, mercy appeal of the petitioner was also dismissed. Copy of the said order has been placed on record as Annexure R-2 bytherespondents. (3) Leamed counsel for the petitioner has assailed the order of imposition of penalty and the order passed in appeal by submitting that the departmental enquiry was instituted on account of prejudice and in an ex parte action, the petitioner was dismissed from service, everi though the charges were not found proved. it has also been submitted that the defence of the petitioner has atso been considered and there is no proper evaluation of facts and evidence on record while arriving at a finding of guilt against the petitioner. Further submission is that the appeal preferred by the petitioner has been dismissed without consideration ofthe merits ofthe case. (4) Per contra, learned counsel for the respondents submits that the departmental enquiry was conducted on specifjc allegations of mjsconduct against the petitioner wherein he was given due and proper opportunity of hearing. After conclusion of enquiry, Enquiry Officer submitted enquiry report concluding that the charges were found proved on the basis of evidence available on record. The disciplinary authority after considering the enquiry report passed the order of dismissal from service. it is also argued that the appellate authority passed the order after due consideration of the appeal of the petitioner which was later on confirmed by the highest departmental authority namely Inspector General of Police vjde its order dated 19-06-1998 (Annexure R.-2). ^^~" "'-^:.,, 'ft^ ^ '^ s/' -<J '^s^-w^ '{ ^. (5) Upon perusal of the order passed by the appellateauthority on 18-10- 1996 (Annexure A-8), it is found that the oniy consideration made by the appellate authority is as below:- ^rM) 3TraTc[3 630 ^}j4ct>^{^ ^prpT ^RT ^Jc^[ -^ c^ f^^ ^FPT ^ ^f^ W^T f^TT TPH| 3TIf^T IT? 'S^TFT 31^8^, c;^cj|^| ^RT ^f^ ^r ^ f^ourio ^o 12/94 ^t "3i" ^cT "iT" -FR(ft ^STT ^rpT^ ^T ^T^cTiR^ f^TT TPTr | +tc|}^^^l ^ ^q^rN^T ^ W1^ f fe <31ift^T?ff -31KO 3:RTf§rc^T ^q ^ 3T^qf^RT ^f c^ 3TT^ t ^cf ^0310 gRT ^3cRT 3TP%rcF) c^ ^£TK ^ c^ ^N ^f^T tft f^TT ^PTT tl 3m: ^r''ST SIE-ftelc}?. ^cll^l ^T?T ^t TJ^ ^uIT -^(cT t| STTftmsff gRI ff^T ^Pft^ Pl^i'W cl^ XjTRft t cr^rr ^RT ^ftHcp, ci^cti^i ^RT ^ ^ WJIT ^TTcRT ^dt 1jIKft t | (6) A perusal of the order passed by the Inspector General of Police on 19- 06-1998 (Annexure R-2) also shows that the mercy appeal was dismissed by recording that relevant records were examined and no substantial grounds have been raised in the mercy appeal so as to reduce the punishment or reverse the order of punishment. (7) In the case of Sonlram Dhniv Versus State of Madhya Praclesh ancl others, (W.P.(S.)No.1367 of 2005) this Court vide order dated 05-02-2010, dea!Jng with the identical situation where totally non-speaking order was passed bythe appellate authority, heid:- 10. Clause 213 of the Chhattisgarh Police Regulations provides that the provisions contained in C.G. Civil Services (Ciassification, Control and Appeal) Rules 1966 shall reguiate penalty and appeal in respect of police officers. It has been held by the High Court of Madhya Pradesh in the matter of Krishna Naravan Shivpvare Dixit Vs. State of M.P and others. 1885. M.P.L.J.. 343 that regulations 213 does not exciude the operation of M.P. Civil Ser/ice (Ciassification, Control & Appeal) Rules, 1966. As no specific provisions had been made in Po!ice Regulations to prescribe the manner in which the appeal against the order of punishment shall be decided by the Appellate Authority, the provisions contained in C.G. CiviJ Services ^ < ^ (Classification,Control & Appeal) Rules, 1966 prescribing mode and manner of exercjse of appellate power by the Appellate Authority are applicable. 11. It is wel! settled that the Appellate Authority while considering the appea! acts in quasj-judidal capacity. Reievant provision contained in C.G. Civil Services (Classification, Control & Appeal) Rules, 1966 for consideration of an appeal are as under:- 27. Consideration ofAppeal:- "(1) In the case of an appeal against an order of suspension, the appellate authority shaJI consider whether in the light of the provisions of rule 9 and having regard to the circumstances of the case, the order of suspension is Justified or not and confirm or revoke the order accordingly. (2) In the case of an appeal against an order imposing any of the penalties specified in rule 10 or enhancing any _penalty imposed under the said rule, the appellate authority shall consider:- (a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure ofjustice; (b) whether the findings of the disciplinary authority are warranted by the evidence on the records; and (c) whether the penalty or enhanced penalty imposed js adequate, inadequate or severe, and pass orders- (i) confirmjng, enhancing, reducing or setting aside the penalty; or (ii) remjtting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstences of the case." 12. Appellate Authority is therefore obliged under the law to exercise its statutory power of appeal in accordance with the provisions r ^-.. contained in Rules 27 of the Rules of 1966. Consequently, while exercising its appellate jurisdiction, Appellate Authority is duty bound to exercise the -same in the manner prescribed in Rule 27 (2) of the Rules of 1966. Rules mandatorily require the Appeltate Authority to consider whether the procedure laid down in the Rules has been complied with and if not whether such non-compliance resulted in vioiation of any provisjon of the Constitution of India or in the failure of justice; whether findings of the disciplinary authority are warranted by the evidence on record and whether the penalfy imposed is adequate, inadequate or severe. The Appellate Authority is therefore under statutory obiigations to consider the appea! in the manner as laid down in the Rutes as aforesaid and then may confirm enhance, reduce or set aside the penalty or remit the case to the Authority which imposed or enhanced the penalty or to any other Authority with such direction as deem fit in the circumstances of the case. The scheme of Rule 27 therefore clearly implies that the Appellate Authority has to pass speaking order indicating that point? raised by the petitioner has been considered. In case the objection of the petitioner is not acceptable he has to give the reasons for not accepting the same. It is thus the duty of Authority to apply its mind while deciding the appeal and he is obiiged to give clear finding on the charges ofthe penalty. The powers of Authority belng quasi-judicial in nature are required to be performed in ali seriousness with a view to do justice with the appellant. 13. Though it is now well settled proposition of law that an Appellate Authority or Revisional Authority is not required to give detail reasons while agreeing with and confirming order passed by the Disciplinary Authority, as held jn the cases of Tara Chand Khatri Vs. Munidpa! Corporation of Delhi and others. 1977 (1) SCC 472: Dlvisional Forest Officer. Kothaaudem and others Vs^ Madhusudhan Rao. 2008 (3) SCC 469, but if in the scheme of the statut0jsy rules goveming terms and conditions of service such a duty is on Appejiate Authority to give reasons even in the case of an order of afflrmation, the AppeIJate Authority is obiiged to give reasons by app!ying its mind while considering the appeal in the manner prescribed under the Rules. ^y^j s /•' f ^' 14. !n the case of Ram Chander Vs. Union of India and others. 1986 f3) SCC 103 taking into consideration the Rule 22 (2) of the Railway Servants (Discipline and Appeal) Rules, 1968, which is quite similar to the rules applicable in the present case it was held as under:- "4. The duty to give reasons is an incident of the judicial process. So. in R.P. Bhatt v. Union of India (1986 (2)SCC 651), this Court, in somewhat simiiar circumstances, interpreting R.27(2) of the Central Civil Sen/ices (Classification, Control & Appeal) Rules, 1965 which provision is in pari materia with R.22(2) of the Railway Servants (Discipline & Appea!) Rules, 1968, observed : "Itis dearupon theterms of R.27(2) that the appeSlate authority is required to consider(1)whether the procedure laid down in the rules has been complied with; and if not, whether such non compliance has resulted in violation of any of the provisions of the Constitution of India or in the failure of justice ;(2) whether the findings of the discipiinary authority are warranted by the evidence on record ; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or remit back the case to the authority v^hjch imposed the same> jt was held thatthe word 'consider' in Rule.27 (2)0fthe Rules Implied 'due application of mind'. The Court emphasized that the Appellate Authority discharging quasi- judicial functions in accordance with natural justice must give reasons for its decisions. There was in that case, as here, no indication in the impugned order that the Director- Genera!,Border Road Organization, New Delhi was satisfied as to the aforesaid requirements. The Court observed that he had not recorded any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. In the present case, the impugned order of the Railway Board is in these terms : "(1)1n terms of Rule 22(2) of the Railways Servants (Disdpline &Appeal) Rules, 1968, the Railway Board have carefullyconsideredyour appeal against the orders of the Genera! Manager, Northern Railway, New Delhi imposing on you the penalty of removal from semce and have obser^ed as under: (a) by the evidence cn record, the findings ofthe discjplinary authority are warranted ; and (b) the penalty of removal from service imposed on you is merited. (2) The Railway Board have therefore rejected the appea! preferred byyou." 5.To say the least, this is just a mechanical reproduction of the phraseology of R.22(2) of the Railway Servants Rules without any attempt on the part of the Railway Board either to marshall the evidence on record with a view to decide whether the findings arrived at by the disciplinary authority could be sustained or not. There is a!so no indication that the Railway Board applied its mind as to whether the act of misconduct with which the appellant was charged together with the attendant circumstances and the past record of the appellant were such that he should have been visited with the extreme penalty of removal from service for a single lapse in a span of 24 years of serviee. Dismissal or remova! from service is a matter of grave concern to a civil servant who after such a long period of service, may not deserve such a harsh punishmentThere being non-compliance with the requiremente of R.22(2) of the Railway Servants Rules, the impugned order passed by the Railway Board is liable to be set aside." !n the same judgment, the Supreme Court, pointjng out distjnctjon based on scheme of statutory rules relating to consideration of an explained as below: "8. So aiso in Tara Chand Khatri v. Municipal Corporation ^ ^- ofDelhi &0rs.. [1977]2 S.C.R. 198 this Court observed that there was a vital difference between an order of reversal by the appellate authority and an order of afdrmance and the omission to give reasons for the decision may not by ifcself be a suffident ground for passing such order, relying on the test laid down by Subba Rao, J. in Madhya Pradesh Industries Ltd.. v. Union of India [1966] 1 S.C.R. 466. "Ordinarily, the appellate or revisional authority shall give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the Appellate Tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons." 9. These authorities proceed upon the principle that in the absence of a requirement in the statute or the rules, there is no duty cast on an appellate authority to give reasons where the order is one of affirmance. Here, R. 22(2) of the Railway Servants Rules in express terms requires the Railway Board to record its findings on the three aspects stated therein. Similar are the requirements under R. 27(2) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965. R. 22(2) provides that in the case of an appeal against an order imposing any of the penalties specified in R. 6 or enhancing any penalty imposed under the said rule, the appellate authority shalt 'consider'as to the matters indicated therein. The word 'consider' has different shades of meaning and must in R.22(2), in the context in which it appears, mean an objective consideration by the Railway Board after due appiication of mind which implies the giving of reasons for its decision. 15. Even in a case where there is no duty caste on Appellate Authority to give reasons in case of order of affirmatjon, Supreme Court held in the case of Divjsionai Forest OfficeL Kothaaudem and others feupra). "20. It is no doubt also true that an appellate or revisional authorify is not required to give detailed reasons for agreeing and confirming an order passed by the lov/er forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or Tevision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the Jowerforum." 16. Recently in the case of Chairman, Disciplinary Aythont^ Rani Lakshmi Bai Kshetriva Gramin Bank Vs. Jaadish Sharan Varshnev and others.2009 (4) SCC ^O. Supreme Court has hetd as under: "5. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover's case (supra) has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appeilate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disdplinary authority. 6. The view we are taking was also taken by this Court in Divisional Forest Officer vs. Madhusudan Rao, JT 2008 (2) SC 253 (vide SCC para-20: JT para-19), and in Madhya Pradesh industries Ltd. vs. Union of India, AIR 1966 SC 671, siemens Engineering & Manufacturing Co. of India Ltd. vs. Union of tndia, AIR 1976 SC 1785 (A!R para 6), 10 ^ etc. 7. In the present case, since the appellate authority's order does not contain any reasons, it does not show any application of mind. 8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court jn the case of S.N.Mukherjee vs. Union of India reported in (1990) 4 SCC 594 :1990 SC (Cri.)669, is that peopie must have confrdence in the judidal or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed Jn a judicial or quasi-judicial order, even jf it is an order of affirmation. 9. No doubt, in S.N.Mukherjee's case (supra), it has been observed C'SCC p 613. para 36)) that: 36 "..The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge." The above observation, in our opinion, really means that the order of affirmance need not contain an elaborate reasoning as contained in the order of the original authority, but it cannot be understood to mean that even brief reasons need not be given in an order of affirmance. To take a contrary view would mean that appellate authorities can simply dismiss appeals by one line orders stating that they agree with the view of the lower authority. 10. For the same reason, the decision of this Court in State of Madras vs. Srinivasan, AIR 1966 SC 1827 (vide A!R para 15)) has aiso to be understood as explained by us above." 11 Y- v. (8) if the order passed by the Appellate Authority is scrutinized by applying principle of !aw laid down keeping in view statutory requirement as to the manner of consideration of an appeal. it ieads to inevitable conclusion that the order passed by the AppeSJate Authority does not contain any reason whatsoever and is a mechanica! affirmation without considering the appea! to the statutory service ruies much !ess application of mind to the grounds by the petitioner in his appeai. Therefore, the order by the Appeliate Authority affirming the order passed in appeal is clearly unsustainable in law and liable to be set aside. (9) ln view of the above finding, 1 do not propose to go into other aspects of the matter reiating to vaiidity of the order of punishment recorded by the Disciplinary AuthorEty on the ground raised by the petitioner in the petition as argued by iearned counsel for the petitioner. (10) Relying upon the order of Supreme Court in the case of Chairman, DJscipSJnary Authohty, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney (supra) this petition is partly allowed and the Impugned order dated 18-10-1996(Annexure A-8) and order dated 19-06-1998 (Annexure R"2) are hereby set aside. The matter is remanded to the AppeElate Authority to decide the appeai filed by the petitioner afresh in accordance wlth iaw. !t is further directed that the appeal shall be decided by the appelSate authority as expeditiously as possible not later than 4 months from the date of receipt of copy of this order. No order as to costs. Sd/- Ma-indr.MotanSte-v^"8 T"man^