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Madhya Pradesh High Court · body

2013 DIGILAW 30 (MP)

Vikram Singh Rana v. State of M. P.

2013-01-03

S.C.SHARMA

body2013
JUDGMENT : Parties through their Counsel. Proviso. 2. The petitioner before this Court has filed this present petition being aggrieved by a show-cause notice dated 30-5-2012 issued by the Inspector General of Police, Indore Zone, Indore seeking explanation from the petitioner as to why he should not be dismissed from the service. 3. The contention of the petitioner is that he is serving as an Assistant Sub-Inspector of Police and on account of certain alleged misconduct, a charge-sheet was issued to the petitioner. An order was passed for holding joint enquiry on 30-3-2011 and thereafter, an Enquiry Officer was appointed to conduct an enquiry. The petitioner has further stated that the Enquiry Officer after enquiring into the matter submitted the enquiry report on 22-3-2012 and exonerated the petitioner in respect of the charges levelled against him. 4. The contention of the petitioner is that thereafter, the Inspector General of Police, who is the Appellate Authority has issued a show-cause notice' on 30-5-2012 and he has disagreed with the findings arrived at by the Enquiry Officer. Learned Counsel for the petitioner has argued before this Court that the Inspector General of Police has not only disagreed with the findings arrived at by the Enquiry Officer but he has held the charges established against the petitioner. It has also been stated in the show-cause notice that the petitioner is being granted time to file a reply against the proposed punishment of dismissal from service. 5. Learned Counsel has argued before this Court that keeping in view the statutory provisions as contained under the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, the Disciplinary Authority while holding the petitioner guilty of the alleged charges should have supplied the note-of-descent and thereafter, final order should have been passed in the facts and circumstances of the case. 6. He has placed reliance upon a judgment delivered by the Apex Court in the case of Yoginath D. Wagde Vs. State of Maharashtra and another, reported in AIR 1999 SC 3734 , and his contention is that the Apex Court in the similar circumstances has quashed the impugned order therein. Learned Counsel prays for quashing of the impugned order show-cause notice dated 30-5-2012. 7. State of Maharashtra and another, reported in AIR 1999 SC 3734 , and his contention is that the Apex Court in the similar circumstances has quashed the impugned order therein. Learned Counsel prays for quashing of the impugned order show-cause notice dated 30-5-2012. 7. A detailed and exhaustive reply has been filed in the matter and the stand of the State Government is that the Inspector General of Police is competent to review any order passed by the Subordinate Authority by invoking the provisions as contained in Para 270 of the Police Regulations and therefore, the show-cause notice was issued to the petitioner while holding the petitioner guilty in respect of the alleged misconduct. 8. Learned Counsel for the respondents/State has argued before this Court that no order of punishment has been inflicted upon the petitioner till date and the department has rightly issued a show-cause notice on 30-5-2012 and the petitioner has been granted an opportunity of hearing in the matter. It has also been argued before this Court that the present writ petition is a premature writ petition and the show-cause notice has been issued under Section 270 of the Police Regulation. He prays for dismissal of the writ petition. 9. Heard the learned Counsel for the parties at length and perused the record. 10. In the present case, it is not in dispute that the petitioner is working as an Assistant Sub-Inspector and it is also not in dispute that a charge-sheet was issued on 8-4-2011 for the alleged misconduct and thereafter, an Enquiry Officer was appointed to enquire the matter. The Enquiry Officer submitted a detailed and exhaustive enquiry report and also exonerated the petitioner in respect of the charges levelled against the petitioner. The Inspector General of Police after taking into account the enquiry report submitted by the Enquiry Officer has issued a show-cause notice on 30-5-2012 and the impugned show-cause clearly reflects that the Inspector General of Police while disagreeing with the findings arrived at by the Enquiry Officer has issued a show-cause notice seeking a reply as to why the punishment of dismissal should not be inflicted upon the petitioner. 11. Rules 1, 2 and 3 of the Rule 15 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 reads as under :- "15. 11. Rules 1, 2 and 3 of the Rule 15 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 reads as under :- "15. Action on the enquiry report.- (1) The Disciplinary Authority if it is not itself the Enquiring Authority may, for reasons to be recorded by it in writing, remit the case to the Enquiring Authority for further enquiry and report and the Enquiring Authority shall thereupon proceed to hold the further enquiry according to the provisions of Rule 14 as far as may be. (2) The Disciplinary Authority shall, if it disagrees with the findings of the Enquiring Authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidence on record is sufficient for the purpose. (3) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Rule 10 should be imposed oh the Government servants, it shall, notwithstanding anything contained in Rule 16, make an order imposed such penalty but in doing so it shall record reasons in writing : Provided that in every case where it is necessary to consult the Commission, the record of the enquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant." The aforesaid statutory provisions of law provides for a procedure in respect of the action to be taken on the basis of enquiry report and the same clearly provides that the Disciplinary Authority while disagreeing with the findings arrived at by the Enquiry Officer has to record reasons for his disagreement. 12. The Apex Court in the case of Yoginath D. Wagde (supra), while dealing with the similar situation has held that in case, the Disciplinary Authority disagrees with the findings arrived at by the Enquiry Officer, a note of disagreement has to be forwarded to the charged official. 12. The Apex Court in the case of Yoginath D. Wagde (supra), while dealing with the similar situation has held that in case, the Disciplinary Authority disagrees with the findings arrived at by the Enquiry Officer, a note of disagreement has to be forwarded to the charged official. In the aforesaid case of dismissal of the Additional District and Sessions Judge, the Enquiry Officer has exonerated the Additional District Judge in respect of the alleged charges and the enquiry report was forwarded to the Disciplinary Authority and the Disciplinary Authority while disagreeing with the findings arrived at by the Enquiry Officer has also arrived at a conclusion to inflict a punishment of dismissal from service and thereafter, a show-cause notice was issued to the charged official after forming an opinion to inflict the punishment of dismissal from service. 13. In the present case, the Inspector General of Police has disagreed with the findings arrived at by the Enquiry Officer. He has also held the charges levelled against the petitioner as established and proved and a show-cause notice has been issued as to why he should not be dismissed from service. The Apex Court in the case of Yoginath D. Wagde (supra), in Paragraph Nos. 28, 29, 33, 36, 37 and 52 has held as under :- "28. In view of the provisions contained in the Statutory Rule extracted above, it is open to the Disciplinary Authority either to agree with the findings recorded by the Enquiring Authority or disagree with those findings. If it does not agree with the findings of the Enquiring Authority, it may record its own findings. Where the Enquiring Authority has found the delinquent officer guilty of the charges framed against him and the Disciplinary Authority agrees with those findings, there would arise no difficulty. So also, if the Enquiring Authority has held the charges proved, but the Disciplinary Authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the Enquiring Authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the Disciplinary Authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. Difficulties have arisen in all those cases in which the Enquiring Authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the Disciplinary Authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the Rules made under Article 309 of the Constitution or the Disciplinary Authority may, of its own, provide such an opportunity. Where the Rules are in this regard silent, and the Disciplinary Authority also does not give an opportunity of hearing to the delinquent officer and records findings, different from those of the Enquiring Authority that the charges were established, 'an opportunity of hearing' may have to be read into the Rule by which the procedure for dealing with the Enquiring Authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be 'not guilty' by the Enquiring Authority, is found 'guilty' without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of 'not guilty' has already been recorded. 29. We have already extracted Rule 9 (2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which enables the Disciplinary Authority to disagree with the findings of the Enquiring Authority on any article of charges. The only requirement is that it shall record its reasoning for such disagreement. The Rule does not specifically provide that before recording its own findings, the Disciplinary Authority will give an opportunity of hearing to a delinquent officer. But the requirement of 'hearing' in consonance with the principles of natural justice even at that stage has to be read into Rule 9 (2) and it has to be held that before Disciplinary Authority finally disagrees with the findings of the Enquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Enquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent officer the 'tentative' reasons for disagreeing with the findings of the Enquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Enquiring Authority are not germane and the finding of 'not guilty' already recorded by the Enquiring Authority was not liable to be interfered with. 33. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311 (2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the 'right to be heard' would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away in any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution. 36. Along with the show-cause notice, a copy of the findings recorded by the Enquiry Officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated the appellant but it was immaterial as he was required to show cause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only to a 'tentative' decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the Disciplinary Committee. 37. Since the Disciplinary Committee did not give any opportunity of hearing to the appellant before taking a final decision in the matter relating to findings on the two charges framed against him, the principles of natural justice, as laid down by a Three-Judge Bench of this Court in Punjab National Bank Vs. Kunj Behari Mishra, (1998) 7 SCC 84 = AIR 1998 SC 2713 = 1998 AIR SCW 2762 = 1998 Lab IC 3012 = 1998 All LJ 2009, referred to above, were violated. 52. Having regard to the circumstances of this case, we are of the view that the Disciplinary Committee was wholly in error in disagreeing with the findings recorded by the Enquiry Officer and the charges levied against the appellant were not established." 14. Keeping in view the judgment delivered by the Apex Court as a show-cause notice was not served by the Disciplinary Authority while disagreeing with the findings arrived by the Enquiry Officer, the present show-cause notice dated 30-5-2012 by which a reply of the petitioner has been sought as to why he should not be dismissed from service deserves to be quashed. 15. 15. In the present case, no show-cause notice was issued by the Inspector General of Police while holding the charges as proved against the petitioner. The Inspector General of Police without granting an opportunity of hearing to the petitioner at any point of time has finally issued the impugned order and the same is bad in law and is liable to be quashed and it is accordingly quashed. 16. Learned Government Advocate has also argued before this Court that the aforesaid show-cause notice has been issued under Regulation 270 (2) of the Police Regulations. 17. In the present case, it is certainly not in dispute that the provisions of the M.P. Police Regulations and the provisions of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 are applicable to the employees of the Home Department and" the enquiry has been held as per the provisions of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. The procedure and the provisions have not been followed as prescribed under the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. 18. Keeping in view the judgment delivered by the Apex Court in the case of Yoginath D. Wagde (supra), the plea raised by the respondents is of no help to the respondents. The impugned order dated 30-5-2012 is accordingly set aside. 19. With the aforesaid, the writ petition is allowed. No order as to costs.