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2004 DIGILAW 631 (MP)

Ram Autar Pande v. State of M. P.

2004-08-06

A.K.SHRIVASTAVA

body2004
Judgment ( 1. ) THIS petition was originally filed on 17-12-1986 before this Court and was registered as Misc. Petition No. 4137/86, however, on the formation of the M. P. State Administrative Tribunal, this petition was transferred to its and after abolition of the Tribunal again this petition has been received by this Court for adjudication. ( 2. ) THE petitioner by this petition has challenged his order of compulsory retirement passed after holding disciplinary enquiry against him. That order is Annexure A-21 which has been passed by DIG, Police. It is no more in dispute that later on the said order by which the petitioner was directed to be retired compulsorily was affirmed in the departmental appeal vide Annexure A-23, dated 2-9-1983 by Inspector General of Police and the revision petition which was preferred by the petitioner before the Director General of Police was also dismissed vide Annexure R-2 on 29-10-1984. ( 3. ) SHRI Aseem Dixit, learned Government Advocate, has not disputed that the appointing authority is I. G. , Police. Since the petitioner was appointed and serving on the post of Sub Inspector and there is nothing on record in order to indicate that any powers were delegated to DIG, Police to pass any order of punishment by the appointing authority, therefore, the impugned order passed by DIG, Police (Annexure P-21) punishing the petitioner by an order of compulsory retirement can not be allowed to remain stand since it has been passed by an authority having no jurisdiction and who is inferior to the appointing authority. Thus, the impugned order (Annexure P-21) is coram non judice. In the case of Sardar Badeosingh Nageenasingh v. State of M. P. and Ors. , 1989 MPLJ 443 , similar situation was arose where an order of compulsory retirement as a consequence of departmental enquiry of a Head Constable was passed by Superintendent of Police who is subordinate to I. G. , Police was found to be illegal. In the present case also since the appointing authority is I. G. , Police and the order of compulsory retirement which is a consequence of departmental enquiry, has been passed by DIG, Police, as such the said order of punishment is void ab initio. ( 4. In the present case also since the appointing authority is I. G. , Police and the order of compulsory retirement which is a consequence of departmental enquiry, has been passed by DIG, Police, as such the said order of punishment is void ab initio. ( 4. ) IT has been contended by learned Government Advocate that even if the order of the initial authority is void, the departmental appeal was filed by the delinquent employee to the I. G. , Police who is the appointing authority and who had also dismissed the departmental appeal of petitioner vide Annexure A-23 on 2-9-1983 and, therefore, even if the authority who had passed the punishment order was inferior to the appointing authority the action can not be said to be invalid. The argument though, at first blush, appears to be quite attractive, but on deeper scrutiny found to be devoid of any substance. I have already held hereinabove that the order retiring compulsory by way of punishment is void ab initio and was coram non judice and, therefore, if the order of initial authority is void, the order of the appellate authority can not make it valid. In this context, it would be condign to rely the decision of the Apex Court in Baradakanta Mishra v. High Court of Orissa and Anr. , AIR 1976 SC 1899 , wherein it has been categorically held by the Apex Court that if the order of initial authority is void an order of the appellate authority can not make it valid by dismissing the departmental appeal. Similar position has been reiterated in another decision by the Apex Court Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg and Anr. , 1977 Lab. IC 272. ( 5. ) IN the result, the petition succeeds and is hereby allowed. The order of compulsory retirement passed by the DIG, Police is held to be coram non judice and, accordingly, the same is hereby quashed. The orders of appellate authority and revisional authority are also quashed. The petitioner shall be deemed to be in service for all purpose with all consequential benefits. The respondents are hereby directed to issue necessary order in that regard. Looking to the facts and circumstances of the case, the parties are directed to bear their own costs.