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2015 DIGILAW 15 (CHH)

Arvind Kumar Pandey v. State of C. G.

2015-01-15

NAVIN SINHA, P.SAM KOSHY

body2015
ORDER : Navin Sinha, J. 1. Heard learned Counsel for the appellant and the State. The present appeal arises from order dated 14-12-2011 dismissing Writ Petition No. 980 of 2002. The learned Single Judge declined to interfere with the order for dismissal of the appellant from the post of Constable passed by the Disciplinary Authority and affirmed by the Appellate Authority as also by the Director General of Police in a mercy appeal. 2. Learned Counsel for the appellant submits that once pursuant to departmental proceedings an order of punishment had been passed on 16-8-1998 withholding two increments with non-cumulative effect for a period of two years and the appellant had not questioned the order, the punishment attained finality. If the authority superior to the Disciplinary Authority was not agreeable with the same, he could have issued a second show-cause notice for difference of opinion at that stage itself under Rule 29 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as "the Rules"). No such action was taken. The successor Commandant had no jurisdiction to reopen and review the order of his predecessor Commandant as the order was not passed by the individual occupant but by the office of the Commandant. If the subsequent order dated 1-2-1999 by the successor Commandant dismissing him from service and that too without a show-cause notice with a general observation that his superiors had objected to the nature of punishment, is founded on illegality, the respondents cannot find a cause of action based on illegality to have passed the subsequent order for dismissal on 28-11-2000, more than two years later. 3. Learned Counsel for the State also relied on Rule 29 to submit that the Deputy Inspector General of Police as the Appellate Authority could suo motu exercise powers to call for the records of any enquiry and review any order. He could confirm, reduce, enhance or set aside the penalty imposed also. The punishment was enhanced by him after due opportunity to the appellant. Any irregularity committed by the successor Commandant in ordering the dismissal on 1-2-1999, without a show-cause notice stood rectified. 4. We have considered the submissions on behalf of the parties. The appellant, a Constable, is alleged to have pulled a loaded Rifle on the chest of a colleague threatening to shoot. Any irregularity committed by the successor Commandant in ordering the dismissal on 1-2-1999, without a show-cause notice stood rectified. 4. We have considered the submissions on behalf of the parties. The appellant, a Constable, is alleged to have pulled a loaded Rifle on the chest of a colleague threatening to shoot. He was proceeded with departmentally and an order of punishment passed on 16-8-1998 withholding two increments with non-cumulative effect for a period of two years. The appellant did not challenge this order for punishment, which attained finality. The authority superior to the Disciplinary Authority if he was dissatisfied with the nature of punishment imposed, could easily have differed with the same and proceeded in accordance with law under Rule 29(1) by giving a show-cause notice to the appellant. No such action was taken. 5. After the Commandant, who had passed the order of punishment was replaced by the successor Commandant, the latter passed an order on 1-2-1999, dismissing the appellant from service. This order was passed in violation of the principles of natural justice without any show-cause notice to the appellant or having any authority in the law to do so. The order simply states that the higher authorities had objected to the nature of the punishment imposed. No name, much less any designation of the Superior Authority was mentioned in the order. Nothing prevented the Superior Authorities from suo motu exercise of review powers with the statutory period of six months under Rule 29. If under the proviso to Rule 29, the Superior Authority could not have done so without a show-cause notice, we fail to understand how the Commandant, who had absolutely no jurisdiction in the matter could have proceeded without a show-cause notice, if at all he could do so. 6. The Government functions as an entity. Successor officers do not constitute a separate authority. The power is vested in the seat and not in the individual. The present was not purely an administrative order, but was quasi judicial order having consequences for the appellant. If successor officers are permitted to reopen orders of their predecessors on the same seat, it would lead to complete anarchy rather than the Government in accordance with the Rule of law. This aspect of the matter we find has not been considered by the learned Single Judge. If successor officers are permitted to reopen orders of their predecessors on the same seat, it would lead to complete anarchy rather than the Government in accordance with the Rule of law. This aspect of the matter we find has not been considered by the learned Single Judge. We are, therefore, of the opinion that the order dated 1-2-1999 itself is not sustainable. If the edifice itself collapses of all subsequent actions based on the same leading to the dismissal automatically collapse. 7. Disapproving the same in State of Assam and another Vs. J.N. Roy Biswas, (1976) 1 SCC 234 , it was observed at Paragraph 2 as follows:-- "2. It is noteworthy that no reasoned findings were recorded. That particular officer retired and his successor wrote to the Joint Secretary to Government that from the materials of the case the 'delinquent' merited punishment and the proceedings be reopened. This was done and as the de novo recording of evidence progressed the respondent moved the High Court under Article 226 for a writ of prohibition as, in his submission, there was no power to reopen a case concluded by exoneration and reinstatement and the illegal vexation of a second enquiry should be arrested. This grievance was held good by the High Court, which granted the relief sought." 8. The Deputy Inspector General of Police (hereinafter referred to as "the DIG") himself opined that the order dated 1-2-1999 was not in accordance with the law and had ordered reinstatement. Thereafter, he assumed unto himself jurisdiction wrongly under Rule 29. The only question before him was the correctness of the order dated 1-2-1999. If that order had not been passed there would have been no occasion for him to have assumed jurisdiction in the matter. He was not exercising suo motu powers by calling for records against the order of punishment dated 16-8-1998. 9. The DIG assumed jurisdiction in the matter on 23-6-2000 purportedly under Rule 29. The submission that the DIG could exercise suo motu powers under Rule 29 leaves us totally unimpressed as even that power was to be exercised within six months from the date of punishment dated 16-8-1998. We are, therefore, unable to sustain the order of dismissal. All subsequent orders automatically collapse. The appellant is relegated to the original punishment for stoppage of two increments as ordered. 10. We are, therefore, unable to sustain the order of dismissal. All subsequent orders automatically collapse. The appellant is relegated to the original punishment for stoppage of two increments as ordered. 10. In so far as back wages are concerned we grant liberty to the appellant to represent before the authorities disclosing his status in the interregnum and the authorities will decide the claim for back wages after an enquiry to their satisfaction. The period in interregnum shall count for all other purposes of service except back wages. The order under appeal is set aside and the appeal is allowed.