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Madhya Pradesh High Court · body

2009 DIGILAW 989 (MP)

Basanti Gaur v. State of M. P.

2009-08-18

SHANTANU KEMKAR

body2009
JUDGMENT Petitioner was working on the post of Sub-Inspector (M) in the Home (Police) Department of the Government of M. P. She is aggrieved by the order dt. 23-1-2007 (Annexure P/9) by which she was ordered to be reverted from the post of Sub Inspector (M) to the post of Assistant Sub Inspector (M) issued by the fifth respondent, the order dt. 14-3-2007 (Annexure P/12) issued by the fourth respondent by which she was retired compulsorily, the appellate order dt. 8-5-2007 (Annexure P/13) issued by the third respondent as also the order dt. 10-7-2007 (Annexure P/15) issued by the second respondent. 2. Briefly stated a complaint dt. 7-6-2004 was made against the petitioner by the sixth respondent alleging therein that she had demanded and accepted in piecemeal bribe amount of Rs. 35,000/- from the sixth respondent for appointment of the sixth respondent's son on compassionate basis in place of her husband who died in harness. 3. On receipt of the aforesaid complaint a preliminary enquiry was held against the petitioner. On consideration of the preliminary enquiry report dt. 29-11-2004(Annexure P/2) in which she was found guilty a show cause notice was issued to her. After receipt of the reply to the show cause notice, the fifth respondent, Superintendent of Police, Dewas vide order dt. 13-9-2005 (Annexure P/4) imposed upon the petitioner penalty of censure. 4. Thereafter, the fourth respondent Deputy Inspector General of Police, Ujjain Range exercising his suo motu powers under Regulation 270 of the M. P. Police Regulations (for short the Police Regulations) on 1-2-2006 ordered for a fresh enquiry by cancelling the punishment of censure imposed upon the petitioner by the Superintendent of Police. In pursuance to the said order dt. 1-2-2006 a charge-sheet was issued to the petitioner on 3-2-2006 (Annexure P/5). 5. A departmental enquiry was conducted in respect of the said charge- sheet (Annexure P/5) in which she was found guilty of the charges levelled against her. Accordingly, an order of punishment was passed on 23-1-2007 (Annexure P/9) reverting the petitioner from the post of Sub-Inspector (M) to the post of Assistant Sub Inspector (M) for a period of two years. 6. The fourth respondent again took up the matter in suo-motu revision and issued notice dt. 24-2-2007 (Annexure P/10) to the petitioner to show cause as to why the penalty of reversion be not enhanced. 6. The fourth respondent again took up the matter in suo-motu revision and issued notice dt. 24-2-2007 (Annexure P/10) to the petitioner to show cause as to why the penalty of reversion be not enhanced. The petitioner submitted her reply (Annexure P/l 1) to the show cause notice. After considering the reply of the petitioner the revisional authority imposed upon her, penalty of compulsory retirement vide order dt. 14-3-2007 (Annexure P/12) which was affirmed by the appellate authority vide order dt. 8-5-2007 (Annexure P/13) also in mercy appeal by the Director General of Police vide order dt. 10-7-2007 (Annexure P/15). Aggrieved the petitioner has filed this petition. 7. Heard learned counsel for the parties and perused the record. 8. The contention of the petitioner is that the appellate authority while exercising its powers of suo-motu revision under Regulation 270 of the Police Regulations and before passing the order dt. 1-2-2006 against the order dt. 13-9-2005 (Annexure P/4) of penalty of censure failed to comply proviso to Regulation 270(iv) of the Police Regulations inasmuch as before cancelling the order of penalty of censure and ordering for issuance of the charge-sheet and ordering for holding departmental enquiry the revisional authority did not serve upon the petitioner a notice to show cause and also did not afford an opportunity to her of being heard. In the circumstances the contention of the petitioner is that the issuance of the charge-sheet, holding of the enquiry, imposition of the penalty, enhancement of penalty to compulsory retirement and the subsequent appellate order and the order passed in mercy appeal are not sustainable. 9. The contention of learned GA is that the appellate authority while considering the order of penalty passed by the Superintendent of Police inflicting upon the petitioner the lenient penalty of censure found the same to be disproportionate to the misconduct which was found to be proved in the preliminary enquiry. In the circumstances the punishment of censure imposed upon the petitioner was cancelled and charge-sheet was directed to be issued to her vide order dt. 1-2-2006. 10. On perusal of the order dt. 1-12-2006 which is available on record produced by the respondent Nos. In the circumstances the punishment of censure imposed upon the petitioner was cancelled and charge-sheet was directed to be issued to her vide order dt. 1-2-2006. 10. On perusal of the order dt. 1-12-2006 which is available on record produced by the respondent Nos. 1 to 5 at the time of hearing I have noticed that the appellate authority has cancelled the order of penalty of censure imposed upon the petitioner by the Superintendent of Police, without issuance of notice and without giving any opportunity of hearing to the petitioner. Such a course was not available to the appellate authority in view of the Regulation 270 of the Police Regulations. 11. Regulation 270 of the Police Regulations reads thus: [(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, an 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 afresh inquiry 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]. 12. On a bare perusal of Police Regulation 270 it is evident that the revising authority is empowered to remit, vary or enhance the punishment imposed or may order a fresh enquiry or taking of the further evidence in exercise of its powers under Police Regulation 270 provided a notice has been served on the parties interested and opportunity is given to them for being heard. Admittedly, before cancelling the order of penalty of censure (Annexure P/4) and ordering for holding of enquiry by issuance of charge-sheet neither a notice was served upon the petitioner nor any opportunity of hearing was afforded to her. 13. Admittedly, before cancelling the order of penalty of censure (Annexure P/4) and ordering for holding of enquiry by issuance of charge-sheet neither a notice was served upon the petitioner nor any opportunity of hearing was afforded to her. 13. Having regard to the aforesaid, in my considered view the fourth respondent/appellate authority has not complied with the provisions of Regulation 270 of the Police Regulations while cancelling the order dt. 13-9-2005 (Annexure P/4) passed by the Superintendent of Police imposing upon the petitioner penalty of censure, in the circumstances the order dt. 1-2-2006 by which the charge-sheet has been directed to be issued to the petitioner and all the subsequent proceedings and the consequential orders referred to above cannot be sustained. Accordingly the charge-sheet dt. 3-2-2006 (Annexure P/5) and all the subsequent proceedings/orders deserves to be and are hereby quashed. As a consequence of this the respondent Nos. 1 to 5 are directed to reinstate the petitioner. 14. However the fourth respondent/appellate authority shall be at liberty to issue a show cause notice under Regulation 270 of the Police Regulations to the petitioner in regard to the cancellation of the order of censure and for the proposed action of ordering enquiry against the petitioner by issuance of the charge-sheet to her. 15. The question about backwages from the date when the petitioner has been compulsorily retired to the date of her reinstatement as a consequence of this order shall be decided by the competent authority of the official respondents at the appropriate stage. 16. With the aforesaid directions the petition stands disposed of. No orders as to costs. Order accordingly.