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2014 DIGILAW 1111 (MP)

Gajendra Singh Vardhaman v. State of M. P.

2014-09-04

A.K.SHARMA, RAJENDRA MENON

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JUDGMENT 1. Even though this appeal filed under section 2(1) of the M.P.Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 is listed today on the question of admission, but a very short question with regard to imposition of minor penalty without cumulative effect in a proceeding held under section 16 of M.P.Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as ‘Rules’ for short) read alongwith the Police Regulation are involved in the matter, we propose to dispose of the appeal on merits at this stage, itself with the consent of the learned counsel for the parties. 2. Appellant herein was working as Sub Divisional Officer (Police) Lanji, District Balaghat. He was entrusted with the responsibility of investigating Crime No.15/2012 registered for offence under section 306 read with section 34 of IPC. In the matter even though the accused persons were arrested, but they were enlarged on bail in the light of the fact that chargesheet was not filed in the competent Court within the statutory period of sixty days. It seems that in the trial conducted the learned Additional District and Sessions Judge, Ratlam in his judgment Annexure P-15 dated 1.8.2013 made certain observations with regard to the conduct of inquiry officer in not filing the challan within time, resulting in granting bail to the accused persons. However, the petitioner filed a revision and got the observations against him expunged, but on the allegation of negligence in performance of duties and in not taking action in time for filing challan within sixty days chargesheet/show cause notice was issued to the petitioner Annexure P-17. The petitioner submitted the reply and based on the same the competent Disciplinary Authority imposed the penalty of withholding one increment without cumulative effect. The appeal was filed by the petitioner vide Anneuxre P-19 and the State Government having dismissed the appeal, the writ petition was filed. 3. Even though various grounds were raised in the writ petition, the learned writ Court found that a minor penalty has been imposed for dereliction of the duty and as the action is taken after following due process of law and as the petitioner is alleged to have committed delay in filing the charge-sheet in a sensitive criminal matter, the writ Court refused to interfere in the matter. Now, in the appeal it was pointed out that while dealing with the matter neither the disciplinary authority nor the appellate authority have considered the defence of the petitioner. The authorities should have discussed the defence and thereafter recorded a finding of guilt against the petitioner after discarding or accepting the defence and explanation. It is said that if a disciplinary action is taken and even when only a minor penalty is imposed, it is incumbent upon the disciplinary authority and the appellate authority to evaluate and record reasons so as to accept or reject the defence. In this case this procedure has not been followed and, therefore, the entire proceeding is vitiated. The writ Court having dismissed the petition without delving into these legal aspects, interference be made in this appeal. 4. Shri Amit Seth, learned Government Advocate took us through the order passed by the writ Court, the finding recorded by the disciplinary authority vide Annexure P-17 and order of appellate authority Annexure P-20 dated 4.7.2014 to say that as only a minor punishment in accordance with Rule 16 has been imposed, no interference be made. 5. We have heard learned counsel for parties and we have perused the record. From the perusal of order passed by appellate authority as contained in Annexure P-20 dated 4.7.2014 it is apparent that the proceedings were initiated against the petitioner by the Director General of Police vide his communication dated 2.5.2013 for imposing the minor punishment and proceedings were initiated under Rule 16 of the Rules. Records indicate that the show cause notice was issued on 2.5.2013 and petitioner submitted his detailed defence to the same, which indicates various reasons why he could not submit the charghesheet within 60 days. It was the case of petitioner before the Disciplinary Authority that the accused was arrested on 24.3.2012, thereafter he was investigating the matter, one of the prime witness Buralal had gone to Gujarat therefore process was initiated to summon him and record his statement under section 161 of CrPC, this witness Buralal came to the Head Quarter only on 7.5.2012 and his statements were recorded. Thereafter statements of two more witnesses namely Nathu Bheel and Guddu were to be recorded and as these witnesses had gone out of the State in connection with their employment they were not available and when this process was going on petitioner was required to go to New Delhi in connection with a case before the Delhi High Court for attending the matter. Petitioner had taken leave from 18.5.2012 to 24.5.2012, to go to Delhi for this purpose and during this period charge was given to another officer. It was the case of appellant before the disciplinary authority that there is no negligence or delay in filing the chargesheet and he gave his justification for the delay, if any. 6. Even though such an assertion by way of defence is made by the petitioner in his reply to the show cause notice and charge-sheet and he has further reiterated the same in appeal Annexure P-19, but from the perusal of the order passed the Disciplinary Authority i.e. Annexure P-17 and the order passed by the appellate authority Annexure P-20 it appears that they have not considered the defence of the petitioner and proceeded to punish the petitioner without evaluating his defence or explanation. Even in a proceeding under Rule 16 the inquiry contemplated under the statutory rule has to be done showing application of mind which includes assessment of defence of the employee its consideration in accordance with the law and thereafter recording of reasons either for accepting of the defence or its rejection. It is only after exercising such a process, the order of punishment under Rule 16 of the Rules can be imposed. Any punishment even a minor one has adverse effect on the career of an employee and therefore a finding of guilt has to be recorded after considering the defence and explanation of the delinquent employee. This is a mandatory requirement and without considering this aspect if any order of punishment is passed the same becomes unsustainable under the law. In this case there is no assessment or consideration of the explanation of the employee, with regard to the delay due to non-availability of witness etc. and in an illegal or casual manner he is held guilty of the misconduct without considering his explanation. This is not permissible and therefore on this count, the entire action stand vitiated. 7. In this case there is no assessment or consideration of the explanation of the employee, with regard to the delay due to non-availability of witness etc. and in an illegal or casual manner he is held guilty of the misconduct without considering his explanation. This is not permissible and therefore on this count, the entire action stand vitiated. 7. In view of aforesaid, the appeal is allowed. The orders of the disciplinary authority Annexure P-17 and of the appellate authority Annexure P-20 are quashed and the matter is remanded back to the disciplinary authority to reconsider and conclude the proceedings in accordance with law, within a period of three months from the date of receipt of certified copy of this order. 8. With the aforesaid, this appeal stands allowed and disposed of.