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Madhya Pradesh High Court · body

2008 DIGILAW 167 (MP)

Anil Soni v. State of M. P.

2008-01-31

R.S.JHA

body2008
Judgment ( 1. ) THE petitioner has filed this petition being aggrieved by order dated 24-12-1993 by which he has been dismissed from service and order dated 11-3-1994 by which the appeal filed by him against the order of his dismissal has been rejected. ( 2. ) THE facts, necessary for adjudication of this petition, are that the petitioner, who at the relevant time was working as a constable in the Police Department, was initially subjected to an enquiry on a complaint regarding having an illicit relationship with one Shobha. After enquiry, the superintendent of Police, who was the competent authority, imposed a minor punishment of withholding of one annual increment for a period of one year vide order dated 2-2-1993. Subsequently, on the new Superintendent of Police joining the post, the order of minor penalty was cancelled by him vide order dated 21-5-1993 and a fresh charge-sheet, levelling the same charge of having an illicit relationship with Shobha and consequential charges of conduct unbecoming that of a Police officer was served upon him on 28-6-1993. After conducting a full fledged departmental enquiry, the Superintendent of police, vide the impugned order dated 24-12-1993, imposed a punishment of dismissal from service on the petitioner. Being aggrieved, the petitioner filed an appeal before the appellate authority which was also rejected vide order dated 11-3-1994, hence this petition. ( 3. ) THE issue raised by the learned counsel for the petitioner in the present petition is as to whether the superintendent of Police had the power or authority to reopen the concluded disciplinary proceeding, cancel the previous order of punishment passed by his predecessor dated 2-2-93 imposing a minor penalty and to re-initiate a fresh departmental proceeding and impose a punishment of dismissal in respect of the same charges. It is submitted by the learned counsel for the petitioner that there is no power vested in the Superintendent of Police to review or recall an earlier order of punishment or to reopen departmental proceedings which had been finally concluded and impose the extreme punishment of dismissal. ( 4. ) PER contra, the learned Government Advocate, appearing on behalf of the State, submits that the superintendent of Police has power under Regulation 221 and 270 of the M. P. Police Regulations to review the order of punishment. ( 4. ) PER contra, the learned Government Advocate, appearing on behalf of the State, submits that the superintendent of Police has power under Regulation 221 and 270 of the M. P. Police Regulations to review the order of punishment. It is further submitted that as a full fledged departmental enquiry was required to be held as per regulation 228, therefore, the Superintendent of Police in bonafide exercise of powers recalled the previous order of punishment as it was imposed without holding a full fledged detailed departmental enquiry and instituted a fresh regular departmental enquiry with a view to give due opportunity to the petitioner to defend himself and, therefore, no fault can be found in the impugned exercise of powers by the superintendent of Police. ( 5. ) I have heard the learned counsel for the parties at length. Admittedly as a minor punishment of withholding one increment for a period of one year was imposed upon the petitioner by order dated 2-2-1993 on the charge of having an illicit relationship with one Shobha, it is to be examined whether the same disciplinary authority has the power to recall the punishment, reopen and re-initiate the enquiry on the same charge and thereafter impose a punishment of dismissal from service. ( 6. ) TO properly appreciate the contention of the parties, it is necessary to consider the provisions of Regulation 221, 228 and 270 of the M. P. Police Regulations, which read as under: "221. Power of S. P.-An Assistant Inspector-General or a Superintendent exercises the following powers of punishment: (a) Power to inflict any of the punishments specified in Regulations 214 to 217 on head constables and constables. (b) Power to inflict on Sub-Inspectors and assistant Sub-Inspectors, the penalties specified in Regulation 214 (i) and (iv) or in Regulation 215 (a) and (b) or to withhold the increment of a Sub-Inspector and an Assistant Sub-Inspector for a period of one year from the date on which it falls due. (c ) Power to reduce the pay of Sub-Inspector and an Assistant Sub-Inspector. (c-1) Power to inflict the punishment of censure on Inspectors. (d) Power to suspend any non-gazetted office of police pending inquiry into his conduct. 228. (c ) Power to reduce the pay of Sub-Inspector and an Assistant Sub-Inspector. (c-1) Power to inflict the punishment of censure on Inspectors. (d) Power to suspend any non-gazetted office of police pending inquiry into his conduct. 228. D. E.-When and how held.-In every case of removal, compulsory retirement from service, reduction in rank, grade or pay or withholding of increment for a period in excess of one year a formal proceedings must be recorded by the Superintendent in the prescribed form,- setting forth. (a) the charge; (b) the evidence on which the charge is based; (c ) the defence of the accused; (d) the statement of his witnesses (if any); (e) the finding of the Superintendent, with the reasons on which it is based; (f) the Superintendents final order or recommendation, as the case may be: provided that it shall not be necessary to record a formal proceeding, if, due to exigencies of service and not by reason of any misconduct or fault on his part, a Police officer is transferred from a post carrying a special or specialist pay in the Special Armed Forces, Motor transport or Radio Telegraphy sections to a post not carrying such pay and reduction in his pay is caused by reason of such transfer. . . . . . . . . . . . . 270. (1) Every order of punishment of exoneration, whether original or appellate shall be liable to revision suo-motu by any authority superior to the authority making the order. (2) Every appellate order by a final appellate authority shall be liable to revision by such final appellate authority, on application made in that behalf by the person against whom the order has been passed. Explanation.-For the purposes of this clause, the expression "final appellate authority" means the final authority empowered to hear an appeal under Police regulation 262. (3) The provisions of Regulations 266, 267, 268 and 271 shall, as nearly as may be, apply to an application for revision. (4) The revising 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. On a perusal of Regulation 221 of the M. P. Police regulations, it is clear that the said regulation only enumerates the power of the Superintendent of Police which do not include the power to reopen and initiate departmental proceedings on the same charge or to review an order of punishment imposed by his predecessor or equal in rank. Regulation 228 prescribes the procedure that is required to be followed in a departmental enquiry in cases of removal, compulsory retirement from service, reduction in rank, grade or pay or withholding of increment for a period in excess of one year. Admittedly, in the present case, the first order dated 2-2-93 by which a minor punishment of stoppage of one increment for one year was imposed does not fall within the scope and ambit of Regulation 228 necessitating the holding of a full fledged enquiry. Regulation 270 confers suo motu power of revision on any authority superior to the authority making the order. As is manifest, this regulation does not repose any power of review in the disciplinary authority and also does not vest any power in an authority to exercise suo motu power of revision or to reopen an order passed by his predecessor and equal in rank. ( 7. ) EVEN if the provisions of the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 are taken aid of by the respondents, they are also to the same effect. Provisions of rule 14 (3) read with rule 16 of these Rules provide that an order of minor penalty can be imposed after giving a show cause notice to the concerned employee and obtaining his reply without holding a full fledged departmental enquiry. Rule 29 of the Rules 1966, which confers the power of review, clearly stipulates that the said power can be exercised only by an authority superior to the authority making the order. Apparently, there is no rule which has been pointed out by the learned Government Advocate appearing for the state which empowers the authorities of equal status to reopen, recall, cancel or review an order imposing a minor penalty after conclusion of disciplinary proceedings passed by his predecessor and equal in rank and re-initiate an enquiry on the same charges. Apparently, there is no rule which has been pointed out by the learned Government Advocate appearing for the state which empowers the authorities of equal status to reopen, recall, cancel or review an order imposing a minor penalty after conclusion of disciplinary proceedings passed by his predecessor and equal in rank and re-initiate an enquiry on the same charges. It is submitted by the learned counsel for the petitioner and rightly so that an order imposing a minor penalty is not purely an administrative order which could be reviewed by the authority to rectify an apparent mistake. ( 8. ) IT is pertinent to take into consideration the fact that the nature of power exercised by a disciplinary authority during a department enquiry is quasi judicial in nature as has been held by the Supreme Court in Jagannath Prasad v. State of U. P. AIR 1961 SC 1245 , and M. V. Bijlani v. Union of India (2006)5 SCC 88 and therefore the disciplinary authority cannot review, recall or reopen its own order passed on conclusion of a departmental enquiry unless and until such a power is statutorily conferred on the disciplinary authority. It is settled law that the power of review is not inherent in the authority but has to be specifically conferred by statute and for this proposition the judgment in the case of Dr. Kashinath G. Jalmi v. The Speaker (1993) 2 SCC 703 can be profitably referred. I am also supported for the view I have taken from the judgment of the Supreme Court rendered in the case of canara Bank v. Swapan Kumar Pani (2006) 3 SCC 251 . ( 9. ) IN view of the aforementioned circumstances, I am of the considered opinion that once the Superintendent of Police (disciplinary authority), after holding a limited enquiry, had imposed a punishment of withholding of one increment for a period of one year vide order dated 2-2-93, the succeeding superintendent of Police (disciplinary authority) could not have reviewed and cancelled that order by order dated 21-5-1993 and initiated a fresh enquiry on the same charge of illicit relationship with Shobha by issuing a fresh charge sheet on 21-6-93 and nor could he have imposed a major punishment of dismissal from service on the same charge on the pretext of holding a full fledged departmental enquiry. The appellate authority while deciding the petitioners appeal has also not considered this aspect though it was raised by the petitioner before it and, therefore, the appellate order also suffers from perversity and non-application of mind. ( 10. ) IN view of the aforesaid circumstances, the impugned order dated 24-12-93 imposing the punishment of dismissal and the appellate order dated 11-3-94 affirming the same are hereby set aside and the initial order of punishment dated 2-293 imposing a minor punishment of stoppage of one annual increment for one year is re-affirmed. As a consequence the petitioner shall be reinstated in service with all consequential benefits except back wages which entitlement is restricted to 50% looking to the staleness of the incident and the long pendency of this petition. ( 11. ) THE petition filed by the petitioner is accordingly allowed in the aforesaid terms. In the peculiar facts and circumstances of the case, there shall be no order as to costs.