1§J» S'a!'!-' SMl IMff IEJS 1NS MSO ?l!ai jn .lt1i3 j<01 ^.' icos'o' f !WiS It - a,wy n E? ai^ |s.bw S' , O) in ••" ^•y:y •fs ?-< p.'S !p) y-^; .H'(?.ls^ ^i.ffi ,(i> ^ !:; " '-•-ifi 1-1:I~'.\® ! ,U,,KJ'PI! Vff. «j»i:g, 5~®::wl «:^i-h.W,ct' '•-;'i(iilS:!'" Oi&W ,:v..y'w' •^^. .;.•-" ;-:'i'^^^ tfl CT!IB (n :yo. <s <f :P): <j n.'tii €n> yirr S i-i n> ,n> 61. (t) ,1-1 ;l-h &'!3'>-< ru o o"") h-'.t+i;i :ytl''.M '*?''. "•'•":^ Zf,Ili •5€'li :.' ^'fl.B' WW 9. f..:ff 1-> t» (D O-VM p) o :s £l?i; •Pi Q,'H- ^ ^,1-j! 11II !3 l-l'l-h' & B;Mi •<ft'\.U)'.p.; rt-W (fl<8 •'l.Q. 1B & ,)•*:. l~t:. >tit1'-: ig;...,,:: :?'^'^S%Bis1?BS,e,&, %/@MIBSI@: ;;};A:'%sig§Biffjil kgLv\' HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.1656/2005 C. P. Singh Versus State of Madhva Pradesh and another Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. FOR PRONOUNCMENT OF ORDER i r Sd/- '. Manindra Mohan Shrivastava!; Judge y /. '?ST=F'7. HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.1656/2005 APPLICANT C. P. Singh Versus RESPONDENTS State of Madhya Pradesh and others <? Single Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. Present: - Smt. Fouzia Mirza, counsel for the petitioner. Shri AJay Dwivedi, Deputy Govt. Advocate for the State/respondents. ORDER (Passed on this // dav of March, 2010) By this petition, the petitioner has challenged the order dated 30-06-1995 (Annexure P-1) passed by the disciplinary authority in a departmental enquiry against the petitioner on certain charges of misconduct as also the order dated 20-01-1996 (Annexure A-2) passed by the appellate authority. (2) The petitioner while working as Constable in Police Station Raipur was proceeded against in a departmental enquiry instituted by issuance of charge sheet on 13-06-1994. The Enquiry Officer thereafter conducted departmental enquiry against the petitioner and three other Constable/Head Constable and submitted enquiry report on 30-04-1995 (Annexure A-4) wherein the charges leveled against the petitioner and two other Constables namely Balram Yadav and Ashwani Sharma were found partly proved. Thereafter, the Enquiry Officer submitted a supplementary enquiry report on 19-05-1995 (Annexure A-5) concluding that in view of the statement of prosecution and defence witnesses and on the basis of records, charges were found proved against the present petitioner, Head Constable-Parganiha Das Kurre and two other Constables namely Balram Yadav and Ashwani Sharma. A show cause notice was issued 'Sfe^ ^ [C&JG (_-/ ^•/.^ to the petitioner and other delinquent employees on 29-05-1995 along with a copy of enquiry report (Annexure A-6). The petitioner submitted a detailed reply to the said show cause notice on 10-06-1995 (Annexure A-7). The disciplinary authority vide its order dated 30-06-1995 (Annexure A-1) imposed penalty of compulsory retirement on the petitioner. Aggrieved by the said order of penalty, the petitioner preferred a departmental appeal (Annexure A-8). The said appeal was also dismissed vide orderdated 20-01-1996 (AnnexureA-2). (3) Learned counsel for the petitioner assailed the order of imposition of penalty passed by the disciplinary authority on 30-06-1995 as well as the order passed by the appellate authority on 20-01-1996 by arguing that the Enquiry Officer having submitted enquiry report became functus officio and there is no provision under the relevant service rules to submit supplementary enquiry report. In this view of the matter, the Enquiry Officer acted beyond his jurisdiction in submitting additional/supplementary enquiry report and before preparing the said supplementary enquiry report Enquiry Officer neither recorded any additional evidence nor examined any witness. Imposition of penalty based on such enquiry report and supplementary enquiry report is therefore illegal, violative of principtes of natural justice as also Article 14 and 311 of the Constitution of India. Learned counsel for the petitioner further submits that the finding of guilt recorded against the petitioner is not sustainable as the charges have not been proved. The petitioner being sub-ordinate was 4 bound to obey the orders of his superior on duty and therefore the petitioner cannot be held responsible for committing misconduct. The exercise of seeking supplementary report by the Enquiry Officer shows malice on the part of the disciplinary authority. It is next urged that in view of the provisions contained in clauses 224, 225 and 226 of the Police Regulations, the penalty of compulsory retirement from sen/ice is excessive and illegal. While doing so, provisions "'Sj. ....:5°!^ '*??":?:^?*^' L/ contained in Clause 225 of the Police Regulations relating to award and prizes as well as length of service and the service record of the petitioner ought to have been taken into consideration while determining the quantum of punishment. This having not been done, the order of compulsory retirement is excessive, disproportionate to the gravity of misconduct alleged to have been committed. Lastly, it is'submitted that aggrieved by the impugned order of penalty, the petitioner submitted detailed appeal raising several grounds assailing the legality and vatidity of the order passed by the disciplinary authority on 30-06-1995. Referring to the memo of appeal placed on record as Annexure A-8, it is submitted that substantial grounds were raised in appeal. It is also argued that the appellate authority was obliged under the law to consider the appeal and decide the same by a speaking order by recording reasons which has not been done. A perusal of the order passed in appeal would show that no consideration has taken place and without recording any reason whatsoever in a mechanical manner, the appeal has been dismissed. (4) On the other hand, learned State counsel supported the order passed by the disciplinary/appellate authority by submitting that the petitioner had committed grave misconduct for which a charge sheet was issued to him. Due and proper opportunity to defend the charges was afforded and the petitioner was not only allowed to cross-examine the prosecution witnesses but was also allowed to examine defence witnesses. The Enquiry Officer after consideration of entire evidence available on record concluded in his report that the charges against the petitioner are partly proved and thereafter in a supplementary report dated 19'-05-1995 (Annexure A-5), it was submitted to the disciplinary authority that charges are proved against the delinquent employee. Learned State counsel submits that there is no procedural irregularity or illegality nor violation of principle of natural Justice and the petitioner was given due and proper '•%>. '^-S-l' 4 c' •3S ") opportunity of hearing and the enquiry was held in accordance with law. There is ample evidence to record finding of guilt against the petitioner. The disciplinary authority after giving opportunity of hearing to the petitioner to show cause against the proposed penalty by enclosing copy of enquiry report and after consideration of the said enquiry report, records of enquiry and the defence of the petitioner, imposed penalty which cannot be said to be illegal. Further, the penalty imposed, looking to the gravity of misconduct, cannot be said to be excessive or disproportionate. Appeal filed by the petitioner was considered by the appellate authority and the same has been rightly dismissed as there was no merit in the appeal. (5) Upon perusal of the order passed by the appellate authority on 20-01- 1996 (Annexure A-2), it is found that the only consideration made by the appellate authority is as below:- f?THFft?T •5fra ^^, 3Tift?TTaffTTUr ^RT IR^T SPftpf, ^TT ^IT ^f?l^l<ifl tTSTT HRW SfEftsTEp c^ yR:|dc;r| ?pr ^ ^TCT Tf^ 3IBEPM f^TT TPTT I 3TEZTO7f iT?T ^I? TTOT 'H^T f^ sriWaffrpir gKT ^ ^T 'sw ^ arq^ sTite Tf ^ff f^IIT 'TOT t f^RT^r 'gf^RT SIEftSTcf? gTTT VK^ c;"~s;|ci^l ?5t f^ift WK ^ ^Rclf^d 'EPT^ ^ <;-ISI-4<»> f^ ^r ^i 3pfr?TTaffTTor ^ R'h^ WT^I TT1? .HNITT ^ TNtoTT ^r ^o^ ^? ^f^RT STEJtel? ^NT qifeT ^"^1^1 ^ItT t] StcT^ •^ft ^arf^ TT STEJtSTEp Wty gT?T qrR?T t;"^l^l ^ 'iTSTTEItT ^PPT ';?^' ^? 3pft?tTsfr[T°T TpTj^ WTR SINSfcp 4'!ilf;lg|c;l'H '^ ~^. 1736, IJTP^ 3TT70 ^ftA^f? ^. 118 ^ "t^^ 3TRO SRcT-ft ?fflf ^. 1771 f^IctT 'gw trepr spftcT f?pTRr q?r ^ritft ti (6) In the case of Soniram Dhruv Versus State of Madhya Pradesh and others, (W.P.(S.)No.1367 of 2005) this Court vide order dated 05-02-2010, dealing with the identical situation where totally non-speaking order was passed bythe appellate authority, held:- 10. Clause 213 of the Chhattisgarh Police Regulations provides that the provisions contained in C.G. Civil Services (Classification, Control and Appeal) Rules 1966 shall regulate penalty and appeal in respect 1 '^sssS^. * ii '•ysss3-"^ ,: 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, 1985, M.P.L.J., 343 that regulations 213 does not exclude the operation of M.P. Civil Service (Classification, Control & Appeal) Rules, 1966. As no specific provisions had been made in Police 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. Civil Services (Classification, Control & Appeal) Rules, 1966 prescribing mode and manner of exercise of appellate power by the Appellate Authority are applicable. 11. It is well settled that the Appellate Authority while considering the appeal acts in quasi-judicial capacity. Relevant 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 shall 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 is adequate, inadequate or severe, and pass orders- r -...\ w^'&. 1 8l!«!?;-y-"-^8 ;- 'W'J' "'•a^;i^ QD (i) confirming, enhancing, reducing or setting aside the penalty; or - (ii) remitting 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 circumstances ofthe case." 12. Appellate Authority is therefore obliged under the law to exercise its statutory power of appeal in accordance with the provisions 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 mandatorjly require the Appellate Authority to consider whether the procedure laid down in the Rules has been complied with and if not whether such non-compliance resulted in violation of any provision 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 penalty imposed is adequate, inadequate or severe. The Appellate Authority is therefore under statutory obligations to consider the appeal in the manner as laid down in the Rules 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 points raised by the petitioner has been considered. In case the objection ofthe 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 obliged to give clearfinding on the charges ofthe penalty. The powers of Authority being quasi-Judicial in nature are required to be performed in all 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 in the cases of Tara Chand Khatri Vs. *5, •'^:. ~"s r IVIunicipal Corporation of Delhi and others, 1977 (1) SCC 472; Divisional Forest Officer, Kothagudem and others Vs. Madhusudhan Rao, 2008 (3) SCC 469, but if in the scheme of the statutory rules governing terms and conditions of service such a duty is cast on Appellate Authority to give reasons even in the case of an order of affirmation, the Appellate Authority is obliged to give reasons by applying,?.te rnind while considering the appeal in the manner prescribed under the Rules. 14. In the case of Ram Chander Vs. Union of India and others, 1986 (3) SCC 103 taking into consideration the Rule 22 (2) of the Railway Sen/ants (Discipline and Appeal) Rules, 1968, which is quite similarto 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. Bhattv. Union of India (1986 (2) SCC 651), this Court, in somewhat similar circumstances, interpreting R.27(2) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 which provision is in pari materia with R.22(2) of the Railway Servants (Discipline & Appeal) Rules, 1968, observed : "It is clear upon the terms of R.27(2) that the appellate 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 disciplinary 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 which imposed the same. It was held that the word 'consider' in Rule.27 (2) of the 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- General,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 ofthe discipliEiary authority were warranted by Uie evidence on record. In the present case, the impugned order of the Railway Board is in these terms : "(1) In terms of Rule 22(2) of the Railways Servants (Discipline &Appeal) Rules, 1968, the Railway Board have carefully consideredyour appeal against the orders of the General Manager, Northern Railway, New Delhi imposing on you the penalty of removal from service and have observed as under: (a) by the evidence on record, the findings of the disciplinary authority are warranted ; and (b) the penalty of removal from service imposed on you is merited. (2) The Railway Board have therefore rejected the appeal preferred by you." 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 also 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 service. Dismissal or removal 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 punishment. There being non-compliance with the requirements of R.22(2) of the Railway Servants Rules, the impugned order passed by the Railway Board is liable to be set aside." In the same Judgment, the Supreme Court, pointing out distinction based on scheme of statutory rules relating to consideration of an appeal-expjained as below : "8. So also 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 affirmance and the omission to give reasons for the decision may not by itself be a sufficient ground for passing such order, relying on thetest 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. l-1ere, 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) ofthe 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 shall 'consider' as to the matters indicated therein. The word 'consider' has different shades of meaning and 'si, y'J.- • ^-^^/1 -ri?;?^?ri5 10 must in R.22(2), in the context in which it appears, mean an objective consideration by the Railway Board after due application 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"'affirmation, Supreme Court held in the case of Divisional Forest Officer, Kothagudem and others (supra). "20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower 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 revision. 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 lower forum." 16. Recently in the case of Chairman, Disciplinary Authoritv, Rani Lakshmi Bai Kshetriya Gramin Bank _Vs. Jagdish Sharan Varshney and others, 2009 (4) SCC 240, Supreme Court has held 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 appellate 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 "^. .,.^K ]<1,. 11 a authority has applied its mind while affirming the order of the disciplinary 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. Unian of India, AIR 1966 SC 671, siemens Engineering & Manufacturing Co. of India Ltd. vs. Union of India, AIR 1976 SC 1785 (AIR para 6), 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 in the case of S.N.Mukherjee vs. Union of India reported in (1990) 4 SCC 594 :1990 SC (Cri.)669, is that people must have confidence in the judicial 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 in a judicial or quasi-judicial order, even if it is an order of affirmation. 9. No doubt, in S.N.Mukherjee's case (supra), it has been observed ("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 a^ ".^ 12 fc^ 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 Stafe of Madras vs. Srinivasan, AIR 1966 SC 1827 (vide AIR para 15)) has also to be understood as explained by us above." (7) If the order passed by the Appellate Authority is scrutinized by applying aforesaid principle of law laid down keeping in view statutory requirement as to the manner of consideration of an appeal, it leads to inevitable conclusion that the order passed by the Appellate Authority does not contain any reason whatsoever and is a mechanical affirmation without considering the appeal according to the statutory service rules much less application of mind to the specific grounds raised by the petitioner in his appeal. Therefore, the order passed by the Appellate Authority affirming the order passed in appeal is clearly unsustainable in law and Ijable to be set aside. (8) In view of the above finding, I do not propose to go into other aspects of the matter relating to validity of the order of punishment recorded by the Disciplinary Authority on the ground raised by the petitioner in the petition as argued by learned counsel for the petitioner. (9) Relying upon the order of Supreme Court in the case of Chairman, Disciplinsry Aufhority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney (supra) this petition is partly allowed and the impugned order dated 20-01-1996 (Annexure A-2) is hereby set aside. The matter is remanded to the Appellate Authority to decide the appeal filed by the J, 13 ^'—-', petitioner afresh in accordance with law. Taking into consideration the fact that the order of punishment was imposed way back on 30-06-1995, it is further directed that the appeal shall be decided by the Authority as expeditiously as possibte not later than 4 months from the date of receipt of copy of this order. No order as to costs. _——-— r -< ManmdraMohanShmastav^