Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 1127 (MP)

Satish Chandra Saxena v. State of M. P.

2006-09-21

P.K.JAISWAL

body2006
ORDER 1. These two petitions involving common question of law and fact and were taken up for hearing together and are being disposed of by this common judgment. Puttu Singh Yadav, the petitioner in WP 3758/03 was directly recruited as Sub-Inspector on 23.9.1988. He was promoted on the post of Inspector of Police and on 4.4.1995, posted as Station House Officer, Police Station Janakganj, Gwalior. 2. Satish Chandra Saxena, the petitioner in WP No.3757/03, was appointed as Constable on 9.8.1965. He was promoted on the post of Head Constable, in the year 1977. On 22.1.1988, he was further promoted on the post of Assistant Sub-Inspector. In the month of June, 1995, he was posted as Assistant Sub-Inspector, Police Station Janakganj, Gwalior. 3. Brief facts of the case are that one habeas corpus petition was filed by the father of the detenue Roopa on the allegation that his son Roopa was taken into custody on 27 .6.1995 and was illegally detained and tortured in Police Station Janakganj, Gwalior, along with the petition, a copy of application was presented before the Additional Chief Judicial Magistrate, Gwalior, and submitted that Roopa has been taken into custody on 27.6.1995 and he is tortured in the police station continuously and it was prayed that either he may be directed to be released from illegal detention or, in the alternative, he may be granted bail. On the aforesaid application, report was called from the concerned police station. In the report submitted before the Court, it is mentioned that Roopa is required in Crime No.157 1 95 for offence under section 392, I(PC. It was also mentioned that he is not detained in the police station, but his search is being made. It was reiterated that he has not been arrested. On the same day another application dated 2.7.1995 was filed, controverting the contention that Roopa has not been detained in the police station. It was reported that he was detained on 27.6; 1995 and a false report has been submitted before the Court of ACJM, Gwalior, and that his detention is illegal. On this application further report was called for and on 3rd July, 1995 another report was submitted in writing through APP to the effect that Roopa is not in the police station. In this report it has been mentioned that the detenue has not been detained in the police station. On this application further report was called for and on 3rd July, 1995 another report was submitted in writing through APP to the effect that Roopa is not in the police station. In this report it has been mentioned that the detenue has not been detained in the police station. The writ petition was filed on 4.7.1995. On 6.7.1995, report supported by affidavit of the petitioner (Puttu Singh Yadav) was filed. On 5.7.1995, when Roopa was produced before the Magistrate, grievance was made by Roopa that he has been beaten by police. Then, the Magistrate directed the jail authorities to get the detenue medically examined. Accordingly, he was examined. In the return, it was stated that on 5.7.1995 during the intervening night of 4th and 5th July 1995 at 1 :45 a.m., i.e., on 5th July 1995, Roopa was arrested under sections 25 and 26 of the Arms Act. On 10.7.1995, he was produced before this Court. He was examined by the Court and statements recorded. Thereafter, counsel for the respondents sought time to cross-examine, the case was adjourned to 11.7.1995. On 11.7.1995, an objection of preliminary nature was raised that any enquiry is conducted by this Court is likely to prejudice the proceedings pending before the ACJM on the application for alleged illegal detention in the police custory, filed on behalf of the detenue. Thereafter Roopa was cross-examined at length by counsel for the respondent. When the Court was in the midst of the enquiry, an application was filed by the petitioner, father of Roopa that since Roopa has been released and, therefore, he does not want to press the habeas corpus petition. The Division Bench of this Court, vide order dated 8.8.1995, by allowing the application for withdrawal of the petition and directed for inquiry and passed the following orders as under: "It is apparent to us that for some fear, father of Roopa, does not want to proceed in the case, no application for withdrawal of the petition, has been filed by Roopa although as reported to us he has now been released having been granted bail by the concerned Court. The allegations against respondent No.3, if true, are serious and require a thorough probe so that not only the persons found responsible and guilty are suitably proceeded against departmentally or be otherwise punished in accordance with law, but inquiry is also necessary to arrest recurrence of such incidents, regularly reported to this Court is substantial number by habeas corpus petitions filed against the police. We make it clear that if in the inquiry the petitioner or his son Roopa (the alleged detenue) is/are found to have made a false statement for committing perjury suitable action be instituted and/or initiated against him or them, on the basis of the conclusion in the inquiry. We cannot insist and force the petitioner to prosecute this petition. We have no option but to allow the application for withdrawal or dismissal of the petition as not pressed, but, in order to discover the truth, in our opinion, the case deserves thorough probe in a duly conducted inquiry through the Director General of Police, M.P., who is the Head of the Department. He may himself hold an inquiry or get an inquiry conducted through his duly appointed nominee competent for the purpose. The Registry is directed to transmit the photo copies of all the proceedings taken in this case along with all documents and annexures with the pleadings of the parties to the Director General of Police, M.P. A copy of the order passed by us be also sent to the Director General of Police for necessary inquiry and action. The Director General of Police, after completing the inquiry, shall submit a report to this Court within four months from today. The case is consigned to record-room. A separate Misc. Criminal Case be registered and be listed along with the original record of this case before the Court on expiry of four months or on receipt of the report of inquiry from the Director General of Police, whichever is earlier." 4. The petitioners in both the writ petitions did not challenge the finding recorded in the habeas corpus writ petition vide order dated 8.8.1995 . (Annexure A-1). 5. The respondent No.1 initiated the departmental enquiry against the delinquent police officer, namely, Inspector Puttu Singh Yadav (petitioner in WP No.3758/03), the Assisant Sub-Inspector Satish Chandra Saxena (petitioner in WP No.3757/03 and three constables who were at the relevant time posted at Janakganj Police Station, Gwalior. (Annexure A-1). 5. The respondent No.1 initiated the departmental enquiry against the delinquent police officer, namely, Inspector Puttu Singh Yadav (petitioner in WP No.3758/03), the Assisant Sub-Inspector Satish Chandra Saxena (petitioner in WP No.3757/03 and three constables who were at the relevant time posted at Janakganj Police Station, Gwalior. The respondent No.4 has been appointed a nominee of the Director General of Police to hold an inquiry and accordingly he has recorded the statements of prosecution witnesses as well as the defence side and conducted the inquiry and submitted the inquiry report dated 20.2.1997. He gave finding that none of the charges were found proved. 6. After considering the inquiry report of the respondent No.4 and record of the case, the disciplinary authority has recorded his findings in the matter disagreeing with the earlier findings of the enquiry officer and issued show cause notice to the petitioner vide Annexure A-5 date4 6.5.1997. The following three charges were framed against the petitioner which are as under: ¼1½ fnukad 26-6-1995 dks fcuk fdlh mfpr vk/kkj ds iqfyl Fkkuk tudxat esa :ik iq= [ktku dks fujks/k esa j[kuk rFkk Lo;a dh mifLFkfr esa vkjksih vkj{kdksa }kjk ekjihV dj iqfyl dh Nfo /kwfey djukA ¼2½ ekuuh; mPp U;k;ky; }kjk dSfQ;r ekaxs tkus ij :ik ds fo#) feF;k tkudkjh çLrqr djuk] /kkjk 25@27 vkElZ ,DV ds >waBs çdj.k esa Q¡lkukA ¼3½ ekuuh; mPp U;k;ky; [kaMihB Xokfy;j ds vkns"k fnukad 8-8-1995 esa ;g rF; mtkxj gqvk fd canh ,oa mlds firk ;kfpdkdrkZ us iqfyl ds ncko esa vkdj canh çR;{khdj.k ;kfpdk dh vxyh dk;Zokgh jksdus gsrq ncko MkykA** 7. The disciplinary authority while issuing the show cause notice to the petitioner assigned the reasons as why he is disagreeing with the earlier findings of the enquiry officer and stated that the respondent No.4 inquiry officer has not considered the evidence on record of prosecution witnesses. namely, Smt. Nirmala Devi, Smt. Sheelabai, Khajan Singh and Roopa. The disciplinary authority further stated that there is no material contradiction to the statement of the prosecution witnesses. The oral evidence of the prosecution witnesses are creditable and cogent. They proved charge No.1 and 3 against the petitioner and directed the petitioner to submit its reply within a period of seven days from the date of receipt of notice. 8. Puttu Singh Yadav (petitioner in WP 3758/03) submitted his reply to the said show cause notice (Annexure A-6). The oral evidence of the prosecution witnesses are creditable and cogent. They proved charge No.1 and 3 against the petitioner and directed the petitioner to submit its reply within a period of seven days from the date of receipt of notice. 8. Puttu Singh Yadav (petitioner in WP 3758/03) submitted his reply to the said show cause notice (Annexure A-6). Satish Chandra Saxena .(petitioner in WP 3757/03) also submitted his reply vide Annexure A-6, the disciplinary authority thereafter, after considering the reply of the petitioner by impugned order dated 28.6.1997 (Annexure A-7), found them guilty of both the charges, charges No.1 and 3 and stated that both the charges were fully proved and recorded a finding and passed a detailed order assigning the reasons in detail and thereafter imposed a penalty on Puttu Singh Yadav reverting him for one year from the post of Inspector of Police to that of Sub-Inspector of Police. The disciplinary authority also reverted Satish Chandra Saxena (petitioner in WP No.3757/03) for one year from the post of Assistant Sub-Inspector to that of Head Constable. 9. It is this reversal order by which petitioners in both the writ petitions were reverted for a period of one year. 10. Shri D.K. Katare, Advocate appearing on behalf of the petitioners in both writ petitions has submitted that impugned reversal order dated 28.6.1997 (Annexure A-7) has been passed without issuing any show cause notice to the petitioner. The order is in violation to regulation No.270 of M.P. Police Regulations. There is no order for joint enquiry by the competent authority and, therefore, the order is in violation to rule 14 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. The impugned order is not passed by the competent authority and finding was reversed without issuing any notice in violation to the provisions of regulation No.270(3) of M.P. Police Regulations. 11. On the other hand, learned Panel Lawyer, in reply to the said argument, submitted that impugned order (Annexure A-7) is valid and properly based on thorough scrutiny and assessment of evidence on record. There was no prejudice or mala fide involved in conducting the enquiry and the punishment inflicted is the minimum. A full fledged inquiry was held and the punishment was awarded on the basis of facts adduced in evidence and corroborated by the record. There was no prejudice or mala fide involved in conducting the enquiry and the punishment inflicted is the minimum. A full fledged inquiry was held and the punishment was awarded on the basis of facts adduced in evidence and corroborated by the record. With the above, learned counsel for the respondents prays for dismissal of the writ petition. 12. Puttu Singh Yadav (the petitioner in WP 3758/03) and Satish Chandra Saxena (petitioner in WP 3757/03) are Class-III (Non-Ministerial) members in the police force. They are governed by the M.P. Police Regulations framed under the provisions of the Indian Police Act. A perusal of Schedule to the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 indicates that the said rule does not apply to members or Class-III (non-Ministerial) members in the police force who are kept by M.P. Police Regulations, thus, in the case of both the two petitioners, the Classification Control and Appeal Rules are not applicable. 13. In the case if hand, the competent authority has taken the action in accordance with the provision of M.P. Police Regulations. The learned counsel for the petitioner drew my attention to regulation 270 of M.P. Police Regulations which will be applicable only in appeals and petitions, and, therefore, contention of the petitioner that before reversing the finding of the enquiry officer, and before passing the impugned order by the disciplinary authority, no notice has been issued to the petitioner, is incorrect and contrary to the record. The disciplinary authority issued show cause notice to the petitioner on 6.7.1997, the petitioner after receipt of the said notice submitted the detailed reply vide Annexure A-6 and thereafter order dated 28.6.1997 has been passed by disciplinary authority. Thus, the contention of the petitioner that no show cause notice was issued is contrary to the record and the same cannot be accepted nor on the said ground the impugned order is liable to be quashed. 14. Learned counsel for the petitioner further submitted that no joint inquiry can be held in view of the provisions of rule 14 of Rules of 1966. As stated above, the provisions of Rules of 1966 will not be applicable because the petitioners are Class III (non-miniserial) members in the police force and, therefore, the said provision will not be applicable. Learned counsel for the petitioner further submitted that no joint inquiry can be held in view of the provisions of rule 14 of Rules of 1966. As stated above, the provisions of Rules of 1966 will not be applicable because the petitioners are Class III (non-miniserial) members in the police force and, therefore, the said provision will not be applicable. Even otherwise the facts that there is no order for joint inquiry by competent authority is incorrect and contrary to the record. Satish Chandra Saxena (petitioner in WP 3757/03) raised an objection before the disciplinary authority that joint departmental inquiry cannot be conducted. As per regulations, the disciplinary authority held that competent authority passed the order for joint inquiry and thereafter joint inquiry was conducted. This fact is mentioned in para 4 of the impugned order at page 4 dated 28.6.1997 (Annexure A-6) which reads as under: ^^vkjksih Ø- 2] 4 ,oa 5 dks vkifÙk gS fd çLrqr la;qDr foHkkxh; tk¡p fu;ekuqlkj ugha dh xbZ gSA mudh vkifÙk fujk/kkj ,oa vlR; gS] D;ksafd la;qDr foHkkxh; tk¡p l{ke çkf/kdkjh ds vkns"k ls lafLFkr dh xbZ gSA** 15. Learned counsel for the petitioner placed reliance on the decision of the apex Court in the case of Punjab National Bank and others v. Kunj Behari Mishra reported in (1998)7 SCC 84 and submitted that whenever, the disciplinary authority disagrees with the enquiring authority on any Article of charge then before it records its findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. The principles of natural justice require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. Here in the present case the disciplinary authority disagrees with the enquiring authority on the charges No.1 and 3 and vide Annexure A-5 dated 6.5.1997 issued show cause notice assigning the detailed reasons why he is disagreeing with the finding recorded by the enquiring officer on the said charges and directed the petitioner to submit its detailed reply, along with the said show cause notice, enquiry report of the respondent No.4 was submitted to the petitioner (Annexure A-3). The petitioners in both petitions gave detailed reply, the disciplinary authority after considering the reply of the petitioner gave its finding assigning the reasons and passed the impugned order dated 28.6.1997. Thus, in the present case, there is no violation of principle of natural justice nor the impugned order is passed in violation to Article 311 (2) of the Constitution of India. The decision cited by the learned counsel for the petitioner in the case of Kunj Behari Mishra (supra), will not be applicable in the present facts and it circumstances of the case. 16. In reply of second contention that no document has been produced to indicate that a competent authority had passed the order for joint enquiry under rule 18 of 1966 rules. Learned counsel for the petitioner also drew my attention to the decision of this Court in the case of Moolchand v. State of M.P. and others reported in 1982 M.P. Weekly Notes Note No.459 and Namdev v. State of M.P. and others reported in 2005(2) MPLJ 18 . In the case of Moolchand (supra), no sanction as contemplated under rule 18 of Rules of 1966 was obtained and, therefore, this Court held that in absence of sanction of competent authority allowing joint enquiry, the joint enquiry is bad in law. Herein in this case, the question was raised before the disciplinary authority by Satish Chandra Saxena, the disciplinary authority overruled the said Dejection by holding that competent authority was granted sanction for holding joint enquiry. Herein in this case, the question was raised before the disciplinary authority by Satish Chandra Saxena, the disciplinary authority overruled the said Dejection by holding that competent authority was granted sanction for holding joint enquiry. The said extract of order is reproduced by me in the earlier paras, and, therefore, the decision cited by the learned counsel for the petitioner in the case of Moolchand (supra) will not help in the present facts of the case. In the case of S.N. Singh (supra), the delinquent was subjected a joint enquiry along with Head Constable without any order to proceed with joint enquiry in terms of rule 18 obtained from the competent authority and, therefore, this Court has held that joint inquiry would amount to violation of principles of natural justice. In the present case on going through the impugned order dated 28.6.1997, it is gathered that order to hold joint enquiry was obtained from the competent authority the order was passed by the competent authority to hold joint enquiry and thus, there is no violation nor joint enquiry would amount to violation of principle of natural justice. 17. Learned Panel Lawyer drew my attention to the decision of the apex Court in the case of National Fertilizers Ltd. and another v. P.K. Khanna reported in (2005)7 SCC 597 . Here in the present case petitioners belong to police department and they are governed by the M.P. Police Regulations. The c6mpetent authority proceeding in accordance with procedure contemplated under Police Regulations. There is nothing in the Police Regulation which provides for holding ajoint enquiry in terms of rule 18. That being so, it is to be held that procedure followed in the present case for reverting the petitioners to the post of Sub-Inspector and Head Constable is one which is contemplated under the regulations. That being so, the action is just and proper and impugned order dated 28.6.1997 is passed after following the procedure prescribed under the regulations I and does not warrant any interference in this petition. 18. Regulation 270 of M.P. Police Regulations apply to the proceedings of appeals and petitions and authority superior to the authority making the order is empowered to suo motu revise the order, after giving notice to the parties interested and opportunity given to them for being heard. 18. Regulation 270 of M.P. Police Regulations apply to the proceedings of appeals and petitions and authority superior to the authority making the order is empowered to suo motu revise the order, after giving notice to the parties interested and opportunity given to them for being heard. The provisions of regulations 266 to 268 and 271 will be applicable to an application for revision. Here in the present case disciplinary authority disagrees with the finding of the enquiry officer and recorded its reasons for such disagreement as well as its own finding on charge No.1 and 3. The disciplinary authority disagrees with the findings of the enquiry officer and gave the reasons in support of his disagreement which is evidence from the show cause notice issued to the petitioners vide Annexure A-5 dated 6.5.1997. The petitioners submitted their detailed reply vide Annexure A-6 and, therefore, disciplinary authority recorded its reasons for such disagreement as well as its own finding on such charges vide impugned order dated 28.6.1997 (Annexure A-7). When by the impugned order the disciplinary authority recorded its reasons and gave its own finding after issuing show cause notice to the delinquent officer, the question of non-compliance with the principles of natural justice does not arise. 19. In view of what has been stated above, the impugned order dated 28.6.1997 (Annexure A-7) does not suffer from any infirmity to warrant interference under Article 226/227 of the Constitution. Accordingly both the petitions, WP No.3757/03 and WP 3758/03 are hereby dismissed but without any order as to costs. ..............