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Madhya Pradesh High Court · body

2006 DIGILAW 1427 (MP)

Sushil Kumar Shrivastava v. State of M. P.

2006-12-15

DIPAK MISRA

body2006
ORDER 1. The petitioner, a Sub-Inspector in the department of police was proceeded against in a disciplinary proceedings and after completion of the enquiry, he was visited with the punishment of placement in the minimum of pay scale for a period of two years and further was also given warning to improve his attitude failing which no sympathy would be shown in the future. 2. Grieved by the aforesaid order, the petitioner preferred an appeal under paragraph 262 of the Police Regulations. Thereafter, a show cause notice under paragraph 270 (4) of the aforesaid Regulations was issued to him for retiring him compulsorily. He submitted the reply to the show cause and eventually by order dated 29.8.2005, Annexure P-8, he was visited with the punishment of compulsory retirement. The petitioner intended to prefer an appeal to the State Government but a clarification was issued that no appeal did lie against said order. It is contended that the respondent No.2, Director General of Police, could not have exercised the power of review after lapse of two years, inasmuch as the order of punishment was passed on 29.4.2003. It is further put forth that the respondent No.2 had not assigned any reason to disagree with the findings given by the respondent No.2, Inspector General of Police and hence, on both the counts the order is sensitively susceptible. 3. A counter affidavit has been filed contending, inter alia, that the petitioner had not properly carried investigation in certain criminal cases and therefore a charge sheet was served on him. It is set forth that the petitioner was afforded due opportunity and there is no provision of limitation which curtails the powers of the Director General of Police to exercise the power of revision. 4. I have heard Mr. Vipin Yadav, learned counsel for the petitioner and Mr. Jaideep Singh, learned Government Advocate for the respondents. 5. Mr. Yadav, learned counsel for the petitioner has submitted that after a period of two years, the power could not have been exercised and further the order is sans, reason, therefore, assailed the order. 6. Mr. Jaideep Singh, learned counsel for the State supported the order. 7. Jaideep Singh, learned Government Advocate for the respondents. 5. Mr. Yadav, learned counsel for the petitioner has submitted that after a period of two years, the power could not have been exercised and further the order is sans, reason, therefore, assailed the order. 6. Mr. Jaideep Singh, learned counsel for the State supported the order. 7. To view the rivalised submissions raised at the bar, it is appropriate to refer to 270 (4) of the Police Regulations: "The revision authority may for reasons to be recorded in writing exonerate or may remit, vary or enhance the punishment imposed or may order a fresh enquiry or the taking of further evidence in the case: Provided that it shall not vary or reverse any order unless notice has been served on the parties interested and opportunity given to them for being heard". 8. In this context, on a scanning of the anatomy of the aforesaid provisions, it is perceptible that no time limit is provided, but a significant one, in the absence of any provisions in the Police Regulations, the provision contained in M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 get attracted. In this context, I may refer with profit to the decision rendered in the case of Krishnanarayan Shivpyare Dixit v. State of M.P. and others [ 1985 JLJ 659 = 1985 MPLJ 343 ], wherein the Single Judge has held as under: 15. Learned counsel for the respondents replying to the contention regarding the infraction of the Control and Appeal Rules contends that a perusal of sections 1 to 4 Chapter I of Part II of the Police Regulations which according to the prefatory note at page 11, consist of rules and executive orders by the Government and the executive orders and rules of the Inspector General of Police shows that the following four classes of police personnel are involved in the administration: (i) Gazetted staff-Indian Police Service; (ii) Gazetted staff-State; (iii) Subordinate staff Officers; and (iv) Subordinate staff-rank and file and in this context it has to be held that the expression 'State Police Service' occurring in Regulation 213 of the Police Regulations refers only to the gazetted staff-State and not to the subordinate staff. In support of this submission he also invited my attention to section 7 of the Police Act which deals with punishments only for subordinate staff and to regulations 228 to 232 regarding D.E. Regulation 213 runs thus: "The rules contained in All India Service (Discipline and Appeal) Rules, 1955 and those in the Civil Services (Classification, Control and Appeal) Rules, will regulate the punishment of and appeal from officers belonging to the Indian Police Service and the State Police Service respectively." The respondents' learned counsel in support of his aforesaid submission also invited my attention to rule 3 (d) of the Control and Appeal Rules and urged that in view of the Police Act and the Police Regulations Governing the question of punishments to subordinate staff of the police department, the applicability of the Control and Appeal Rules is clearly excluded. Reliance for the submission was placed on the decision in Mewa Ram Charan 's case. It is apposite to reproduce rule 3 (1) (d) referred to above. "3(1). These rules shall apply to every Government servant but shall not apply to – (d) any reason for whom special provision is made, in respect of matters covered by these rules, by or under any law for the time being in force or by or under any agreement entered into by or with the previous approval of the Governor before or after the commencement of these rules, in regard to matters covered by such special provisions." 16. On a careful consideration of the arguments advanced by the learned counsel for the parties and a perusal of the relevant provisions, lam of the view that it cannot be held that the Control & Appeal Rules are wholly included in Departmental Enquiries against subordinate staff of the police department. The correct principle is as stated by Krishnan, J. in Premchandra v. State. Therein it was observed as under: "Civil Service Regulations, as in force in the State are applicable to all Civil Departments including the Police. Within that Department, there are the Police Regulations which naturally prevail wherever there is conflict between them and the Civil Service Regulations; but in a field like temporary employment, for which there is no special Police Regulations, the Civil Service Regulations as in force in this State, apply. Within that Department, there are the Police Regulations which naturally prevail wherever there is conflict between them and the Civil Service Regulations; but in a field like temporary employment, for which there is no special Police Regulations, the Civil Service Regulations as in force in this State, apply. A probationary Sub-Inspector can be removed without a proceedings under Article 311, unless he has been confirmed during the interval. Of course, if a probationary officer is to be sent away with a black-mark, then proceedings would be necessary." The said principle was reiterated in the case of Mahesh Kumar Shrikishan Tiwari v.State of M.P. and others [ 1985 MPLJ 516 ]. 9. In the case of State of M.P. v. Prahlad [1988 (I) MPWN 113], learned Single Judge of this Court while dealing with rule 29 (1) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 has expressed the opinion that power of review to enhance punishment cannot be exercised after expiry of period of six months. It is appropriate to quote what has been held in the said case. "A bare reading of this Rule indicates that the Appellate Authority may within six months of the date of the order proposed to be reviewed, enhance the penalty imposed by the order. The submission of the learned counsel for the appellant is that the Rule gives discretion to the Appellate Authority to exercise its power within six months and must, therefore, be held directory not mandatory. The submission appears to be that in such a case real test to be applied would be the test of prejudice caused to the respondent and not the breach of Rule itself. This Court is unable to find any substance in this submission. Vesting such a power in the Appellate Authority is not the normal procedure. Indeed review procedure as known in general civil law is the procedure available to the Authority passing the order itself. Any other authority may exercise such a power only in those cases where there is a specific provision in this behalf. Since there is a specific provision in this behalf in this Rule, the D.IG. of Police will have to find his authority in this Rule itself. Any other authority may exercise such a power only in those cases where there is a specific provision in this behalf. Since there is a specific provision in this behalf in this Rule, the D.IG. of Police will have to find his authority in this Rule itself. A plain reading of this Rule indicates that it fixes outer limit of six months to be calculated from the date of the order of the disciplinary authority when the power may be exercised by the Appellate Authority. The use of word may only indicates that it is not compulsory for him to exercise this power even within the period of six months. The Rule does not vest in him any power after the expiry of period of six months. In other words, the D.I.G. of Police ceased to be Reviewing Authority for reviewing the punishment after the period of six months of the order passed by the Superintendent of Police. Under the circumstances the learned lower Appellate Court made no mistake in holding that the impugned order compulsory retirement was without any authority. The learned counsel has not been able to show any decision of any Court which takes a contrary view of the matter to support his submission." 10. In view of the aforesaid, I find substantial force in the submission of Mr. Vipin Yadav. As a consequence, the order of compulsory retirement contained in annexure P-8 stands quashed. The petitioner be reinstated in service. However, keeping in view the facts and circumstances of the case, I am of the considered opinion that the petitioner should not be entitled to any back wages. 11. The writ petition is allowed to the extent indicated above. There shall be no order as to costs.