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2013 DIGILAW 173 (MP)

Ganesh Kumar Sharma v. State of M. P.

2013-02-08

A.K.Shrivastava, G.D.Saxena

body2013
ORDER Shrivastava, J. -- 1. Feeling aggrieved by the order dated 21.6.2012 passed by learned writ Court in Writ Petition(s) No.994/2004 dismissing the writ petition, the writ petitioner has filed this writ appeal under section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005. 2. The facts leading to this appeal are that the appellant who was a Constable in 26th Battalion, Special Armed Force (SAF) was given a conditional permission by communication dated 17.10.2001 (Annexure P-1) to appear in the examination for the recruitment on the post of Sub-Inspector to be conducted by the Government of U.P. In the said permission/order itself, a condition was embodied that it can be cancelled in exigency of service. 3. The appellant was served with a charge-sheet (Annexure P-7) wherein it was alleged that the aforesaid permission dated 17.10.2001 was cancelled on 4.1.2002 and the said cancellation was specifically communicated to him and he was directed to undergo the training which was to be commenced from 2.1.2002 to 18.3.2002, but, the appellant despite having knowledge to the factum of cancellation of the permission proceeded for the aforesaid selection and did not obey the lawful order of his superior officers which amounts to gross misconduct. 4. A disciplinary enquiry was initiated against him and vide order dated 17.5.2002 (Annexure P-8), the disciplinary authority i.e. the Commandant found the charges to be proved and hence passed the punishment order of removal from services. The departmental appeal which was filed by the appellant by Deputy Inspector General of Police, SAF was also dismissed vide order dated 6.9.2002 (Annexure P-10) and thus a writ petition was filed by the appellant challenging the orders of disciplinary as well as the appellate authority and prayed for its quashment with a further prayer that he be reinstated with full back wages. 5. The learned writ Court dismissed the writ petition by the impugned order dated 21.6.2012. In this manner, this writ appeal has been filed by the writ petitioner. 6. 5. The learned writ Court dismissed the writ petition by the impugned order dated 21.6.2012. In this manner, this writ appeal has been filed by the writ petitioner. 6. The contention of Shri D.K. Katare, learned counsel for the appellant is that withdrawal of the permission granted to the writ petitioner was never communicated to him and, therefore, he was not aware about passing of the cancellation of the permission and if that is the position, the impugned orders of the disciplinary authority dated 17.5.2002 (Annexure P-8) and appellate authority dated 6.9.2002 (Annexure P-10) deserve to be set aside and for same reason the order of learned writ Court dated 21.6.2012 be also set aside. In this context, learned counsel has invited our attention to Annexure R-4 dated 4.1.2002 which is the relevant entry of the Roznamcha wherein the letter of cancellation which was sent to him was unserved on account of non-availability of the appellant. In this regard, our attention has been drawn to Single Bench decision of this Court which has been decided by one of us (A.K. Shrivastava, J.) S.P. Tiwari v. Union of India and others [ 2007(1) JLJ 333 ]. 7. An alternative submission has also been propounded by him that in case this Court comes to the conclusion that the aforesaid cancellation order was in the knowledge of the writ petitioner-appellant, since the absence was only for 18 days, therefore, taking a harsh step the dry bread which is without butter of the appellant should not have been snatched by the discplinary authority and the appellate authority. Further it has been argued by him that the services of the appellant are governed by M.P. Police Regulations which are having statutory force and by inviting our attention to regulation 226 it has been submitted that normally the punishment of dismissal from services should not have been passed and this order should be exercised in exceptional cases. 8. On the other hand Shri Vivek Khedkar, learned Deputy Advocate General argued in support of the impugned order passed by learned writ Court and has also placed reliance upon the punishment orders passed by the disciplinary authority as well as the appellate authority. 8. On the other hand Shri Vivek Khedkar, learned Deputy Advocate General argued in support of the impugned order passed by learned writ Court and has also placed reliance upon the punishment orders passed by the disciplinary authority as well as the appellate authority. Learned counsel submits that the charges which have been framed against the delinquent appellant are altogether different and they are not in regard to the absence from duty and, therefore, since the charges have already been proved, there is no scope of any interference either on merit or in the quantum of punishment since it is not shockingly disproportionate. Learned counsel has placed heavy reliance upon certain decisions of Supreme Court, they are Director General, RPF and others v. Ch. Sai Babu [2003(I) MPWN 125= (2003)4 SCC 331 ], Bharat Forge Co.Ltd. v. Uttam Manohar Nakate [ (2005)2 SCC 489 ], State of Punjab and others v. Mohinder Singh [(2005)12 SCC 182], Union of India and others v. Datta Linga Toshatwad [ (2005)13 SCC 709 ], Union of India and others v. R.K. Sharma [ (2001)9 SCC 592 ], Union of India and others v. Debashish Ghosh [ (2009)16 SCC 621 ], and also Shri Bhagwanlal Arya v. Commissioner of Police, Delhi and others [ (2004)4 SCC 560 ], and thus it has been prayed that there is no scope of any interference in this intra-Court appeal and, therefore, the same be dismissed. 9. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part. 10. We find sufficient force in the contention of Shri Khedkar, learned Deputy Advocate General that the charges which have been framed against the appellant are altogether different and the charges have not been framed against him in regard to absence from his duty. 10. We find sufficient force in the contention of Shri Khedkar, learned Deputy Advocate General that the charges which have been framed against the appellant are altogether different and the charges have not been framed against him in regard to absence from his duty. We think it appropriate to quote the charges which reads thus : ^^1- iqfyl eq[;ky; }kjk ukekafdr dekaMks izf’k{k.k esa u tkrs gq, izf’k{kk dh mis{kk djuk ,oa bl izdkj dk d`R; dj iqfyl jsX;wys’ku dh /kkjk 64¼4½ dk Li”V mYya?ku djukA 2- mRrj izns’k iqfyl dh mifujh{kd ijh{kk esa lfEefyr gksus dh iwoZ vuqefr fujLr fd, tkus ds ckn Hkh euekuhiwoZd izf’k{kk esa u tkdj mDr ijh{kk esa lfEefyr gksdj ?kksj vuq’kklughurk dk izn’kZu djukA** Thus, we have no scintilla of doubt in our mind in holding that since the charges were not framed against the appellant pertaining to his absence but they are altogether different, therefore, the Single Bench decision of this Court S.P. Tiwari (supra), placed reliance by learned counsel for the appellant is not applicable in the present case. Apart from this, in this decision, the delinquent employee was not the employee to whom M.P. Police Regulations are applicable. 11. According to us, the service conditions of the appellant are governed by M.P. Police Regulations which are having statutory force. Thus, this Court is bound to see the provisions contained in the aforesaid Regulations. But, before we deal with the provisions of Regulations, first of all we would like to meet out and decide the argument of learned counsel for the appellant on merit. We are not impressed by the submission of learned counsel for the appellant that because the order of cancellation of the permission to appear in the examination of selection of Sub-Inspector in the State of U.P. was never communicated to the appellant, therefore, he did not flout any order of his superiors and, therefore, the charges are not proved. The argument so placed by learned counsel for the appellant at the first blush appears to be quite attractive, but on deeper scrutiny it is found to be devoid of any substance. The argument so placed by learned counsel for the appellant at the first blush appears to be quite attractive, but on deeper scrutiny it is found to be devoid of any substance. True, in Annexure R-4 which is the copy of the Roznamcha filed along with the return it is mentioned that the letter to communicate the cancellation order could not be served upon the appellant because he was not available but, looking to the finding and the order of the disciplinary authority (Annexure P-8) dated 17.5.2002, it is gathered that apart from sending the written letter withdrawing the permission to appear in the examination of Sub-Inspector to be held in the State of U.P., it was specifically and orally directed by the Commandant to the appellant that the permission has been withdrawn. The said finding of disciplinary authority is based upon the material placed before the disciplinary authority and looking to the limited scope of judicial review, learned writ Court has rightly held that the appellant was fully aware about the withdrawal of the permission earlier granted to him. Thus, we are not having any scintilla of doubt in our mind in holding that appellant was fully aware that the permission which was granted to him earlier was later on withdrawn. Hence, the argument placed before us by learned counsel for the appellant is not accepted. 12. We have already held hereinabove that the present case is not of absence from the duty since the charges were altogether different and at the cost of repetition, we may again reiterate that learned writ Court has already held that since the charges were quite different, therefore, the applicability of regulation 190 of the M.P. Police Regulations is not applicable. The finding of learned writ Court in that regard is hereby affirmed. 13. However, we find some substance in the submission of learned counsel for the appellant that since the appellant was serving on the lowest post of Constable, therefore, before passing the order of extreme punishment of dismissal from service, provisions of regulation 226 of the Police Regulations and particularly clauses (iii) and (v) should have been taken into consideration. For ready reference, regulationj 226 is quoted hereunder, which reads thus : “226. Punishments-offences for which given. For ready reference, regulationj 226 is quoted hereunder, which reads thus : “226. Punishments-offences for which given. -- The following rules should be observed in determining what penalty should be awarded for any particular offence : (i) xxx xxx xxx (ii) xxx xxx xxx (iii) Withholding of increment either temporary or permanent (or grade reduction in the case of head constables), is a suitable punishment for all cases of serious dereliction of duty. It may also be inflicted for culpable ignorance of police procedure, laziness or apathy inj conducting the work of the police station, and the like. Fair warning should be given in every instance and opportunity for amendment afforded before the punishment is awarded. In the case of a constable, the period of deprivation shall not exceed a year, nor is it advisable that a constable should be deprived of more than one increment at a time. If, after a departmental enquiry for a subsequent offence, it is found advisable to inflict this punishment on a constable already under reduction, the proper order to pass is one extending the reduction by a period not exceeding on year. Note : When an officer in a graded posts is reduced permanently, his place in the grade to which he is reduced must be determined at the time of passing the order of reduction with due regard to the amount of punishment deserved. (iv) xxx xxx xxx (v) Fine is an appropriate punishment for repeated carelessness and disobedience of orders, unpunctuality and the like. Fines should be moderate in amount; the loss of half a month’s pay is the utmost that should ever be inflicted, save in very exceptional circumstances. The finding of constables is prohibited.” If the aforesaid provision is kept in juxtaposition to clause 64(iv) of M.P. Police Regulations for which appellant was charged, it would reveal that despite there is provision in regulation clause 64(iv) which pertains to maintain discipline; to observe sub-ordination and to obey lawful orders promptly, even then clauses (iii) and (v) have been framed in regulation 226 which are applicable to Constables and which pertains to the penalty to be awarded to a Constable. Indeed, by keeping in mind clause 64(iv) of the said Regulations, the charges were framed in regard to disobeying lawful orders of the superiors and, therefore, before passing the extreme order of punishment of removal from service, according to us, clauses (iii) and (v) of regulation 226 ought to have been seen by the disciplinary as well as by the appellate authority. Learned Deputy Additional General has submitted that earlier the appellant was warned by the authorities but fairly states from the record that his work was appreciated and several times he was also awarded by suitable awards. According to us, since clauses (iii) and (v) of regulation 226 was not taken into account by the disciplinary and the appellate authority, therefore, we hereby direct the disciplinary authority, Commandant, 26th Battalion, SAF, Guna (respondent No.3) to examine the case of the appellant vis-a-vis to regulation 226 of M.P. Police Regulations and by paying heed to clauses (iii) and (v) of regulation 226, fresh order in accordance to the law may be passed. 14. All the decisions placed reliance upon by learned Deputy Advocate General are distinguishable because none of these cases pertains to M.P. Police Regulations since they are either under the service jurisprudence or industrial jurisprudence or of the provisions of Armed Forces which are not governed by M.P. Police Regulations but are governed by different statutes. 15. For the reasons stated hereinabove, the impugned order passed by learned writ Court, except upholding the punishment order of the writ petitioner, rest part of the order is hereby affirmed. However, that part of the impugned order of learned writ Court by which the impugned order passed by the disciplinary authority (Annexure P-8) dated 17.5.2002 and affirmed by the appellate authority (Annexure P-10) dated 6.9.2002 by which the order of removal from service has been passed is hereby set aside partly and only on the quantum of punishment the matter is remanded to the disciplinary authority with a direction that the necessary orders in accordance with law may be passed within a period of two months from the date of receipt of certified copy of this order. Needless to say, before passing any order, a personal hearing to the appellant may be provided. 16. For the reasons stated hereinabove this appeal is allowed in part with no order as to costs.