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2011 DIGILAW 785 (MP)

N. K. Pandey v. State of MP

2011-07-20

SANJAY YADAV

body2011
ORDER Sanjay Yadav, J. 1. Petitioner calls in question the propriety of the charge sheet dated 21.6.2010 in this petition under Article 226 of the Constitution of India. 2. Petitioner is an Inspector in Police Department and has been charge-sheeted that while posted as Station House Officer, Police Station Sarai, district Singrouli on 17.9.2008 he did not lodge the full report regarding the complaint of rape of complainant's daughter and instead lodged a false report in Rojnamcha Sanha No. 148 to the effect that 3 pages of book No. 102 from page 23 are missing. 3. The charge-sheet since has been served by the Inspector General of Police Rewa zone Rewa, the petitioner questions his competency to serve the charge-sheet, on the ground that the petitioner is the gazetted designated officer and his appointing authority is the State Government and the charge-sheet could be served only by the appointing authority as per Rule 13 of M.P. Civil Service (Classification, Control and Appeal) Rules, 1966. 4. Rule 13 of the Rules of 1966 delineate the authorities who could initiate the proceedings. It stipulates: 13. Authority to institute proceedings.- (1) The Governor or any other authority empowered by him by general or special order may - (a) institute disciplinary proceedings against any Government servant; (b) direct a disciplinary authority to institute disciplinary proceedings against any Government servant on whom that disciplinary authority is competent to impose under these rules any of the penalties specified in rule 10. (2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (I) to (iv) of rule 10 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in clauses (v) to (ix) of rule 10 notwithstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties. 5. In Inspector General of Police and another v. Thavasiappan ( (1996) 2 SCC 145 ) Supreme Court in a similar set of Rules observed: 9. As to who shall initiate and conduct a disciplinary proceeding, the Rules are silent. Rule 2 A which provides that the Governor or any other authority empowered by him may institute disciplinary proceedings is an enabling provision. As to who shall initiate and conduct a disciplinary proceeding, the Rules are silent. Rule 2 A which provides that the Governor or any other authority empowered by him may institute disciplinary proceedings is an enabling provision. From the way it is worded it is not possible to infer that the rule making authority intended to take away the power of otherwise competent authorities, like the appointing authority, disciplinary authority or controlling, authority and confine it to the authorities mentioned in Rule 2 A only. Moreover, it is difficult to appreciate how this provision can be helpful in deciding whether the charge should be framed and the enquiry should be held by that authority only which is competent to impose the penalties mentioned in Rule 3(b)(i). An act of instituting a disciplinary proceeding is quite different from conducting an enquiry. Rule 3(b)(i) provides how an enquiry should be held in a case where it is proposed to impose on a member of the service any of the penalties specified in clauses (d), (h), and (i) and (j) of Rule 2. It lays down the different steps that have to be taken in the course of the enquiry proceedings. This Rule is completely silent as regards the person who should perform those acts except that the report of the enquiry has to be prepared by the authority holding the enquiry. Rule 3(b)(i) itself contemplates that the enquiry officer may not be the authority competent to impose the penalties referred to therein and that becomes apparent from the second paragraph of that sub-rule. If it was intended by the rule-making authority that the disciplinary authority should itself frame the charge and hold the enquiry then it would not have provided that a report of the enquiry shall be prepared by the authority holding the enquiry whether or not such authority is competent to impose the penalty. Generally speaking, it is not necessary that the charges should be framed by the authority competent to award the proposed penalty or that the enquiry should be conducted by such authority. We do not find anything in the rules which would induce us to read in Rule 3(b)(i) such a requirement. Generally speaking, it is not necessary that the charges should be framed by the authority competent to award the proposed penalty or that the enquiry should be conducted by such authority. We do not find anything in the rules which would induce us to read in Rule 3(b)(i) such a requirement. In our opinion, the view taken by the Tribunal that in a case falling under Rule 3(b) the charge memo should be issued by the disciplinary authority empowered to impose the penalties referred to therein and if the charge memo is issued by any lower authority then only that penalty can be imposed which that lower authority is competent to ward, is clearly erroneous. We, therefore, allow this appeal. The order passed by the Tribunal is set aside and the case is remitted back to the Tribunal to consider the other contentions which were raised before it and to dispose of the case in accordance with law. 6. In Commissioner of Police v. Jayasurian and another (1997) 6 SCC 75 ), it is held that even a superior authority who can be held to be a controlling authority can initiate a departmental proceedings and issue the charge sheet. It was held: 7. As regards the first ground given by the Tribunal, we find that the matter is covered by the decision of this Court in Inspector General of Police v. Thavasiappan, wherein, construing the rules applicable in this case, it has been held that any superior authority who can be held to be the controlling authority can initiate a departmental proceeding and issue the charge memo and that initiation of a departmental proceeding and conducting an enquiry can be by authority other than the authority competent to impose the proposed penalty. 7. 7. In Director General E. S. I v. T. Abdul Razak (1996) 4 SCC 708 it is held: "13....With regard to initiation of disciplinary proceedings by the Regional Director, we find that the legal position is well settle that it is not necessary that the authority competent to impose the penalty must initiate the disciplinary proceedings can be initiated by any superior authority who can be held to be the controlling authority who may be an officer subordinate to the appointing authority, (See: State of Madhya Pradesh v. Shardul Singh ( 1970 (1) SCC 108 ; P.V. Srinivasa Sastry v. comptroller & Auditor General, 1993 (1) SCC 419 ; and Inspector General of Police & Anr. V. Thavasiappan, 1996 (2) SCC 145 ). The Regional Director, being the officer in charge of the Region, was the controlling authority in respect of the respondents. He could institute the disciplinary proceedings against the respondents even in the absence of specific conferment of a power in that regard." 8. In the case at hand the Zonal Inspector General of Police is a Controlling Authority. The petitioner does not dispute this fact. Therefore, in view of law laid down by the Supreme Court that even in the absence of specific conferment of power, it is lawful on his part to initiate the departmental proceedings and issue the charge-sheet. 9. In the result petition fails and is hereby dismissed. No costs.