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Madhya Pradesh High Court · body

2009 DIGILAW 707 (MP)

ANGAD SINGH RATHORE v. STATE OF M P

2009-06-19

SHANTANU KEMKAR

body2009
Judgment ( 1. ) PETITIONER is working on the post of Inspector in the home (Police Department) of the State Government. ( 2. ) A notice dt. 15. 05. 06 (Annexure A/2) was issued to the petitioner by the third respondent Inspector General of Police, Ujjain to show cause as to why departmental proceedings be not initiated against him for the misconduct alleged in the said notice. The petitioner submitted reply (Annexure A/3) on 25. 05. 06 to the said show cause notice and denied the charges levelled against him. However instead of taking any- decision on the basis of the said reply, the third respondent inspector General of Police, Ujjain Zone issued him yet another show cause notice dt. 14. 06. 06 (Annexure A/4) on the same facts. On receipt of the said show cause notice, having regard to the punishment proposed in the said notice which was not very severe the petitioner thought it proper to. accept the punishment proposed in the said notice. He therefore submitted his reply dt. 24. 06. 06 (Annexure P/5) and requested for lenient punishment. On receipt of the petitioners reply dt. 24. 06. 06 (Annexure A/5) the third respondent considered the same and having regard to the nature of misconduct, the entire facts and circumstances of the alleged incident, took a lenient view and instead of the proposed punishment of withholding of one increment without cumulative effect inflicted upon the petitioner punishment of penalty of Rs. 1000/-vide order dt. 15. 07. 06 (Annexure A/6 ). ( 3. ) AFTER more than eight months of passing of the aforesaid punishment order dt. 15. 07. 06 (Annexure A/6) the second respondent Director General of Police which is also an appellate authority against the impugned order passed by the third respondent issued a notice dt. 24. 03. 07 (Annexure A/1) to the petitioner exercising its suo-motu revisional powers provided under regulation 270 (iv) of the m. P. Police Regulations (for short Regulations) calling upon him to show cause as to why the order dt. 15. 07. 06 passed by the third respondent Inspector General of police, Ujjain Zone be not reviewed and departmental inquiry be not initiated against him having regard to the gravity of the misconduct. ( 4. ) ON receipt of the aforesaid show cause notice dt. 24. 03. 15. 07. 06 passed by the third respondent Inspector General of police, Ujjain Zone be not reviewed and departmental inquiry be not initiated against him having regard to the gravity of the misconduct. ( 4. ) ON receipt of the aforesaid show cause notice dt. 24. 03. 07 (Annexure A/ 1)to take the matter in suo-motu revision, the petitioner submitted reply (Annexure a/7) to it challenging the jurisdiction of the second respondent to issue the show cause notice after expiry of six months from the passing of the order of penalty (Annexure P/6 ). He also prayed for dropping of the proposed action against him. The second respondent vide order dt. 23. 07. 07 rejected the petitioners objection about limitation, cancelled the penalty order dt. 15. 07. 06 (Annexure P/6) passed by the third respondent and ordered to initiate disciplinary proceedings against the petitioner. Feeling aggrieved, the petitioner has filed this petition. ( 5. ) SHRI Sachin Bhatnagar learned counsel for the petitioner argued that the impugned order of exercising the suo-motu revisional power under Regulation 270 (4) of the Regulations by the second respondent who is an appellate authority against the order of penalty passed by the third respondent beyond the period of six months is impermissible. He submits that when the police regulations are silent about the limitation for exercising suo-motu revisional powers the provisions of m. P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for short the Rules) will be applicable. He placing reliance on Rule 29 of (iii) the Rules argued that the second respondent being an appellate authority the order of penalty could have been reviewed by him, within six months of the date of the said order of penalty. He submitted that in view of regulation 262 of the Regulations against-the order of penalty dt. 15. 07. 06 (Annexure A/6) passed by the third respondent inspector General of Police, Ujjain Zone the second respondent Director General of Police would be the appellate authority being authority immediately superior to him. In the circumstances he argued that the Director General of Police being the appellate authority the power of review could have been exercised by him only within six months from the date of the order dt,15. 07. 06 which was proposed to be reviewed. In the circumstances he argued that the Director General of Police being the appellate authority the power of review could have been exercised by him only within six months from the date of the order dt,15. 07. 06 which was proposed to be reviewed. In support of his submissions he placed reliance on the judgment passed by this Court in the case of Sushil Kumar Shrivastava v. State of M. P. and others (2007 (1)MPLJ 392 ). ( 6. ) SHRI Arvind Gokhale learned Government Advocate while supporting the action taken by the second respondent to invoke powers of suo-motu revision argued that the second respondent Director General of Police being the Head of the department directly under the State Government, no period of limitation is prescribed for the head of the department for taking the matter in suo-motu revision. In support of this submission he placed reliance on Rule 29 (ii) of the Rules. ( 7. ) IT is not in dispute that the second respondent is the authority immediately superior to the third respondent Inspector General of Police who had passed the punishment order dt. 15. 07. 06 to the petitioner. Regulation 270 provides that every order of punishment or exoneration, whether original or appellate shall be liable to revision suo-motu by any authority superior to the authority making the order. Since no period of limitation for taking the matter in suo-motu revision has been prescribed in the M. P. Police Regulations, in view of the law laid down by this court in the case of Premchandra v. State [1970 MPLJ 430], Krishnanaryan shivpyare Dixit v. State of M. P. and others [ 1985 MPLJ 343 and in the case sushil Kumar Shrivastava (supra) in the absence of any provision in the Police regulations the provisions contained in the Rules get attracted. ( 8. ( 8. ) REGULATION 262 of the Regulations reads thus : "every Officer against whom an order may be passed under Regulation 214 and who thinks himself wronged thereby shall be entitled to prefer an appeal against such order to the authority immediately superior to the officer who passed the order of punishment; and, [if the appeal if from an officer of the rank of Inspector or of an equivalent rank] and the appeal relates to an order than that referred to in sub-head (I) of regulation 214 and is rejected by the appellate authority, he may prefer a second appeal to the State Government : "provided that a probationer shall have no right of appeal against the orders of his discharge if he has been given an opportunity to show cause against the discharge and his reply duly considered as required by the rule contained in Police-Regulation 228-A. regulation 270 provides for suo -motu revision. " (1) Every order of punishment or 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. "rule 29 of the Rules provides for review which reads thus: "29. " (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. "rule 29 of the Rules provides for review which reads thus: "29. (1) Notwithstanding anything contained in these rules except rule 11-" (i) the Governor; or" (ii) the head of a department directly under the State government, in the case of a Government servant serving in a department or office (not being the secretariat), under the control of such head of a department, or " (Hi) the appellate authority, within six months of the date of the order proposed to be reviewed, or" (iv) any other authority specified in this behalf by the governor by a general or special order, and within such time as may be prescribed in such general or special order may at any time, either on his or its own motion or otherwise call for the records of any inquiry and review any order made under these rules or under the rules repealed by rule 34 from which an appeal is allowed but from which no appeal has been preferred or from, which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-" (a) confirm, modify or set aside the order; or " (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or " (c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or " (d) pass such other orders as it may deem fit:" Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the government servant concerned has been given a reasonable. opportunity of making a representation against the penalty proposed arid where it is proposed to impose; any of the penalties specified in clauses (v) to (ix) of rule 10 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses, no such penalty shall be imposed except after an inquiry in the manner laid down in rule 141 [x x x] and except after consultation with the Commission where such consultation is necessary: "provided further that no power to review shall be exercised by the head of department unless- (i) the authority which made the order in appeal, or (ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him. . "explanation. . . . . . . . . . . . . ( 9. ) IT is not disputed that in view of Regulation 262 of the Regulations against the penalty order dt. 15. 05. 06 passed by the third respondent Inspector General of police, Ujjain the appellate authority would be is the second respondent Director general of Police. Regulation 270 empowers any authority superior to the authority making the order of penalty to review the order suo-motu. This being the position and the Director General of Police being the superior authority as well as appellate authority against the order of penalty sought to be reviewed the provisions contained in Rule 29 Sub Clause (iii) of the Rules would get attracted. Rule 29 (iii) provides that the appellate authority may review the order proposed to be reviewed within six months. In the present case the second respondent appellate authority sought to review the order after more than eight months. In the circumstances the action to take the order of penalty in review having been taken after six months is barred by limitation. ( 10. ) THE contention of learned Government Advocate that the second respondent being the Head of the department no period of limitation is provided for taking the matter in suo-motu revision is misconceived. Police Regulation 270 provides that the review shall be made by any authority superior to the authority making order. In view of Regulation 262 the appellate authority against the order of penalty passed by the Inspector General of Police, Ujjain is Director General of Police gurujisevanyas (SHRI) Vs. Police Regulation 270 provides that the review shall be made by any authority superior to the authority making order. In view of Regulation 262 the appellate authority against the order of penalty passed by the Inspector General of Police, Ujjain is Director General of Police gurujisevanyas (SHRI) Vs. STATE OF M. P. being the authority superior to the authority making the order. In the circumstances proposed action of review by the Director General of Police is in the capacity of the appellate authority and therefore the- suo-motu powers could not have been exercised by him after the prescribed period of limitation of six months in view of rule 29 (iii) of the Rules, 1966. ( 11. ) HAVING regard to the aforesaid, in my considered view the impugned order dt. 23. 07. 07 (Annexure A/8) setting aside the order of penalty passed by the third respondent as also the proposed action against the petitioner in pursuance to the show cause notice dt. 24. 03. 07 (Annexure A/1) are liable to be and are hereby quashed. ( 12. ) THE petition is allowed. No order as to costs. Petition allowed.