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2011 DIGILAW 924 (MP)

Ramkrishna Mishra v. State of M. P.

2011-08-11

SANJAY YADAV

body2011
JUDGMENT : Sanjay Yadav, J.- 1. Punishment of stoppage of one increment with cumulative effect inflicted by order dated 13-7-2010 passed by Deputy Inspector General, Rewa Range, Rewa, in exercise of his suo motu revisional power under Police Regulation 270 is being questioned in the petition. 2. Petitioner, a Sub Inspector, in the Police Department, in respect of the dereliction of his duty while posted as Incharge Police Station Baheri District Sidhi was charge sheeted on 4-12-2008. Following charges were levelled against him: - 3. Denial of charges by the petitioner led to initiation of regular Departmental Enquiry which culminated into recording of finding of no guilt by the Enquiry Officer who submitted the enquiry report on 18-6-2009. The Disciplinary Authority, i.e., the Superintendent of Police exonerated the petitioner of the charges by order dated 23-6-2009. 4. Thereafter, the petitioner was visited with an order on 15-3-2010 passed by the Deputy Inspector General of Police whereby, the order dated 23-6-2009 was set aside and the matter was taken up in suo motu revision. 5. In a challenge in W.P. No. 4291/2010 (s) wherein on an undertaking given by learned Govt. Advocate that the order dated 15-3-2010 was passed under misconception and hence withdrawn, following order .was passed on 26-4-2010: - “In view of the aforesaid statement made by the learned Counsel appearing for the State/respondents and by recording the aforesaid statement the petition filed by the petitioner is disposed of with liberty of the petitioner to file a reply to the undated notice a copy of which had been filed by the petitioner along with the petition as Annexure P-8 arid thereafter the authority 'shall proceed in the matter strictly in accordance with Regulation 270 of the Police Regulation. The petition is accordingly disposed of in term of the aforesaid directions and the statement made by the respondents.” 6. Simultaneously, the petitioner was subjected to a show-cause notice in March, 2010 issued by the Dy. Inspector General of Police in purported exercise of powers under Madhya Pradesh Police Regulations 270. Petitioner replied to the same that the suo motu revision is not maintainable as the same has been taken up after expiry of six months from the date of order to be reviewed. The petitioner however was inflicted with the impugned punishment and is before this Court vide this writ petition. 7. Petitioner replied to the same that the suo motu revision is not maintainable as the same has been taken up after expiry of six months from the date of order to be reviewed. The petitioner however was inflicted with the impugned punishment and is before this Court vide this writ petition. 7. Petitioner questions the order on three grounds that:- (i) it is beyond the power of the Revisional Authority to cause suo motu revision beyond the period of 6 months from the date of order, under review, (ii) that the show-cause notice being cryptic the edifice in the shape of revisional order thereon is vitiated, and (iii) that the suo motu revision since emanates at the instance of the Inspector General of Police, there is no application of independent mind by the Dy. Inspector General of Police and, therefore, the impugned order suffers from the vice of perversity. 8. In order to propitiate the submissions, learned Counsel, in respect of first proposition has placed reliance on the provisions contained under Rule 29 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, which as per the petitioner is applicable and provides for that the suo motu revision can be entertained within six months from the date of order to be reviewed. Reliance is also placed on the decision by Bench of this Court in Sushil Kumar Shrivastava Vs. State of M.P. and others, 2007 (1) MPLJ 392. 9. The said decision though proceed on a principle regarding applicability of the provision of Rules of 1996 in respect of Sub-ordinate Police Officials who are governed by the Police Regulation. However, it appears that the exclusion of applicability of Rules, 1966 was not noted in this case. The exclusion clause appear in the Schedule appended with the Rules of 1966, wherein it is clearly stated that:- “Class III (Non-Ministerial) posts in the Police Department are governed by the Madhya Pradesh Police Regulations framed under the provisions of the Indian Police Act. The control and Appeal rules, will therefore not apply to them.” 10. The aspect of extent of applicability of Civil Service Regulation was a subject matter of the decision rendered in Premchandra Dhapuria, Ex-Sub Inspector Police Vs. The State through the I.G., Police, Bhopal, 1970 MPLJ 430 and Krishna Narayan Dixit Vs. State of M.P. and others, 1985 JLJ 659 . 11. The aspect of extent of applicability of Civil Service Regulation was a subject matter of the decision rendered in Premchandra Dhapuria, Ex-Sub Inspector Police Vs. The State through the I.G., Police, Bhopal, 1970 MPLJ 430 and Krishna Narayan Dixit Vs. State of M.P. and others, 1985 JLJ 659 . 11. In Premchandra Dhapuria (supra), it was observed:- “6. Regarding (b) I do not accept the proposition that the Police Department is incompetent to make temporary appointments. The 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 Regulation, the Civil Service Regulations as in force in this State, apply. Accordingly, the temporary appointment was in order.” 12. In Krishna Narayan Dixit (supra), it was observed:- “16. On a careful consideration of the arguments advanced by the learned Counsel for the parties and a perusal of the relevant provisions, I am of the view that it cannot be held that the Control & Appeal Rules are wholly excluded in Departmental Enquiries against subordinate staff of the police department. The correct principle is as stated by Krishnan, J. in Premchandra Vs. State (2). 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 Regulation, the Civil Service Regulations as in force in this State, apply. A probationary Sub-Inspector can be removed without a proceeding 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.” 13. In the case of Premchand Dhapuria (supra), the controversy was as to whether the petitioner therein a temporary Sub Inspector whose services can be terminated on one months notice and the order passed any reflection on the petitioner in his capacity as public servant could file a writ petition. In the case of Premchand Dhapuria (supra), the controversy was as to whether the petitioner therein a temporary Sub Inspector whose services can be terminated on one months notice and the order passed any reflection on the petitioner in his capacity as public servant could file a writ petition. The difference of opinion therein led the matter to be referred to the Third Judge K.L. Pandey, J., who while concurring with the view taken by Krishnan, J., observed that, “The Madhya Pradesh Civil Services (General Conditions of Service) Rules, 1961 are of general application and there is no provision to the contrary in the Police Regulations governing a case like this. The Note below sub-rule (2) of Rule 8, ibid makes it clear that, at the end of the period of probation for two years, the petitioner could be deemed to have merely continued in service subject to the condition of his service being terminable on the expiry of notice of one calendar month given in writing by either side. This is precisely what was done in this case. It follows that the services of the petitioner were legally terminated and there is no ground for interference by this Court. I agree with Krishnan, J., that this petition should be dismissed”. 14. As has been noted above Krishnan, J., besides dismissing the petition also held that “Civil Service Regulations or for the matter of Fundamental Rules framed under those regulations will be attracted in the case. They have been adopted by the State Government so as to be applicable to the members of police force and further if those provision did not come in conflict with the specific provision of Police Regulation. 15. They have been adopted by the State Government so as to be applicable to the members of police force and further if those provision did not come in conflict with the specific provision of Police Regulation. 15. In Krishna Narayan Dixit (supra), the controversy was as to whether an Assistant Sub Inspector of Police whose Appointing Authority was Deputy Inspector General of Police could have been dismissed by Superintendent of Police it was held that since the Appointing Authority of Assistant Sub Inspector has been mentioned as Deputy Inspector General of Police in Schedule referred in Rule 8 of the M.P. Civil Services (Classification & Appeal) Rules and was according to Regulation 221 the punishment of dismissal enumerated in Regulation 214 (iv) is not within the competence of Superintendent of Police but the power is with the Deputy Inspector General as per Regulation 222, the dismissal of Assistant Sub Inspector by Superintendent of Police was held to be bad. 16. In this cases also reliance was placed on the decision rendered in Premchand Dhapuria (supra), however, it is to be noted that in these two cases in Premchand Dhapuria (supra) and Krishna Narayan Dixit (supra), a provision as now appears in the schedule appended with Rules of 1966 regarding exclusion of applicability of Rules of 1966 in respect of Class III (Non Ministerial) posts in the Police Department are governed by the Madhya Pradesh Police Regulations framed under the provisions of Indian Police Act. 17. Though these decisions are taken note of in Sushil Kumar Shrivastava (supra), the exclusion clause as it appear in the Rules of 1966 seems to have escaped, the notice in these two cases, therefore, the principle laid down therein will be of no help to the petitioner. Because it is Police Regulation 270 which would be applicable in case of the petitioner, a Sub-ordinate Police Officer belonging to Class III Non-Ministerial Cadre. 18. The said Regulation since nowhere prescribe the limitation period, the exercise of revisional power even after the expiry of six months from the date of order to be reviewed does not get vitiated. 19. Police Regulation 270 stipulates:- “(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. 19. Police Regulation 270 stipulates:- “(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 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 any 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 other unless notice has been served on the parties interested and opportunity given to them for being heard.” The first contention of the petitioner therefore, fails. 20. Regarding second contention that, the show-cause notice is cryptic does not find support from the notice in question. Vide show-cause notice a disagreement note has been depicted by the Revisional Authority after considering the material on record and more particularly the evidence led by the prosecution which form the basis for recording a disagreement note. There being an objective consideration of the material on record and the subjective satisfaction thereon of the Competent Authority as reflected in the show-cause notice it cannot be said that the show-cause notice is cryptic. Sufficiency of reasons being the precondition to issue show-cause notice being present, it does not suffer any discrepancy [please see: State of Uttar Pradesh and others Vs. Vam Organic Chemicals Limited, (2010) 6 SCC 222 ]. The second contention raised by the petitioner, therefore, fails. 21. Regarding third contention, to substantiate the same petitioner places reliance on a letter dated 10-11-2009 (Annexure R-1) whereby the Inspector General of Police, Rewa Zone, Rewa calls upon the Dy. Inspector General of Police to initiate suo motu revision. The text of letter would help in understanding as to whether the same in any manner cause breach to the discretion to be exercised by “any superior officer”, the expression which find mention in clause (1) of Regulation 270. Inspector General of Police to initiate suo motu revision. The text of letter would help in understanding as to whether the same in any manner cause breach to the discretion to be exercised by “any superior officer”, the expression which find mention in clause (1) of Regulation 270. As noted above any superior officer as per clause (1) of Regulation 270 can set in motion the proceeding for the suo motu revision. 22. In the case at hand the Competent Authority no doubt is the Dy. Inspector General of Police who has been called upon to call for the record and cause suo motu revision. The need arises, as is apparent, from the complaint received by the Inspector General of Police. However, subsequent action, i.e., issuing of show-cause notice and the revision thereafter is not shown to be guided by the Inspector General of Police as would lead to draw an inference of non-exercise of discretionary power by the Deputy inspector General and an interference by Inspector General. The petitioner has also failed to show any prejudice being caused to him. In this context reference can be had of the decision in Union of India Vs. Alok Kumar, (2010) 5 SCC 349, wherein it is held:- “83. Earlier, in some of the cases, this Court had taken the view that breach of principles of natural justice was in itself a prejudice and no other “de facto” prejudice needs to be proved. In regard to statutory rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where the rule is merely directory the element of de facto prejudice needs to be pleaded and shown. With the development of low, rigidity in these rules is somewhat relaxed. The instance of de facto prejudice has been accepted as an essential feature where there is violation of the non-mandatory rules or violation of natural justice as it is understood in its common parlance. Taking an instance in a Departmental Enquiry where the department relies upon a large number of documents majority of which are furnished and an opportunity is granted to the delinquent officer to defend himself except that some copies of formal documents had not been furnished to the delinquent. Taking an instance in a Departmental Enquiry where the department relies upon a large number of documents majority of which are furnished and an opportunity is granted to the delinquent officer to defend himself except that some copies of formal documents had not been furnished to the delinquent. In that event the onus is upon the employee to show that non-furnishing of these formal documents have resulted in de facto prejudice and he has been put to disadvantage as a result thereof.” 23. In view whereof the third proposition laid by the petitioner being sans merit stands rejected. 24. No other grounds have been raised. 25. In the result, petition fails and is hereby dismissed.