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2017 DIGILAW 52 (CHH)

Indrani Srivas W/o Shri Y. R. Srivas v. State of Chhattisgarh Through: Secretary Home, Raipur

2017-01-30

SANJAY K.AGRAWAL

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ORDER : Sanjay K. Agrawal, J. The petitioner by way of this writ petition calls in question the legality, validity and correctness of the order dated 15.3.2002 (Annexure P/6) passed by respondent No.2 by which in exercise of suo moto revisional jurisdiction provided under Regulation 270 of the C.G. Police Regulations (hereinafter called as "CGPR") enhanced the punishment imposed by the disciplinary authority by withholding one increment to the punishment of compulsory retirement. 2. The aforesaid challenge has been made on the following factual backdrop :- 2.1 The petitioner was working as Sub-Inspector (Ministerial) and posted at 7th Battalion C.G. Armed Force Bhilai. Departmental enquiry was instituted against him by issuing a charge-sheet on 4.1.2001 for two charges. First charge was that he has not produced the correct record before the audit party and second charge was that he has withdrawn some amount and has not made payment to the concerned employee. After conclusion of departmental enquiry, the enquiry officer has submitted enquiry report and on the basis of the enquiry report, the disciplinary authority vide its order dated 24.11.2001 (Annexure P/4) imposed punishment of reduction of withholding of one increment for one year. 2.2 In exercise of powers conferred under Regulation 270 (4) of the CGPR, respondent No.2 took cognizance of the matter suo moto and issued show-cause notice to the petitioner on 2.2.2002, in which the petitioner filed his reply and by order dated 15.3.2002 the revisional authority i.e. Inspector General of Police enhanced the penalty to the extent of compulsory retirement holding that charges found proved are extremely serious in nature. 2.3 Against that order, the petitioner preferred an appeal before respondent No.4/Director General of Police, which was also dismissed by respondent No.4 by order dated 16.10.2002 (Annexure P/12). 2.4 Feeling aggrieved against the orders passed by respondent No.2/Inspector General of Police and respondent No.4/Director General of Police, the present writ petition under Article 226 of the Constitution of India has been filed. 3. Mr.Anurag Dayal Shrivastava, learned counsel appearing for the petitioner, would submit that the petitioner is governed by Regulation of the CGPR, which has a statutory force. He would further submit that the revisional authority while enhancing the penalty imposed by the disciplinary authority has lost sight to consider the provisions of the Regulation 225 and 226 of the CGPR. 3. Mr.Anurag Dayal Shrivastava, learned counsel appearing for the petitioner, would submit that the petitioner is governed by Regulation of the CGPR, which has a statutory force. He would further submit that the revisional authority while enhancing the penalty imposed by the disciplinary authority has lost sight to consider the provisions of the Regulation 225 and 226 of the CGPR. He further submits that Regulation 270 (4) of the CGPR requires reasons to be recorded in writing while enhancing the punishment imposed, but no reasons have been recorded by the revisional authority except holding that charges proved are of serious nature. He further submits that charges are minor in nature and for which order of awarding minor penalty by departmental enquiry should not have been interfered with by the revisional authority that too in exercise of suo moto revisional jurisdiction. The revisional authority failed to examine unblemished record of the petitioner as the petitioner as he has secured 120 awards through his entire service period which has been appraised by the disciplinary authority to the appellate authority vide communication dated 31.5.2002, therefore, the impugned orders deserve to be set aside. 4. On the other hand, Mr.Avinash Singh, learned Panel Lawyer appearing for the respondents, would oppose the writ petition. 5. I have heard learned counsel appearing for the parties, considered their rival submissions made herein and also gone through the documents appended with the petition. 6. It is not in dispute that considering the misconduct pursuant to the regular departmental enquiry, the disciplinary authority imposed punishment by reduction of one increment for one year. It is also not in dispute that the revisional authority after holding that charges proved are serious in nature enhanced the punishment from reduction of one increment to compulsory retirement. 7. It would be appropriate to notice Regulation 225, 226 and 270 (4) of the CGPR which states as under:- "225. The object to be aimed at in adjudicating punishment is that while the punishment shall be adequate to the offence, it shall also be appropriate to the circumstances of the offender. What is a light punishment to one man may be most severe on another and in awarding punishment therefore, careful consideration must be given to the character, antecedents and length of service of the offender. What is a light punishment to one man may be most severe on another and in awarding punishment therefore, careful consideration must be given to the character, antecedents and length of service of the offender. Frank confession of a fault should always be taken into account in mitigation of punishment, while lying and false defences should be considered as a grave aggravation of an offence. 226. Punishments - Offences for which given - The following rules should be observed in determining what penalty should be awarded for any particular offence:- (i) (a) dismissal is the last resource and should, ordinarily, not be inflicted until all other means of corrections have failed. (b) If dismissal is considered too severe a punishment for a Sub-Inspector he should be removed from the service (this does not amount to dismissal) (ii) Reduction in rank is suitable punishment for incompetence, or cases of serious dereliction of duty in which dismissal or removal is considered to be too severe a punishment. As a general rule, Sub-Inspectors who are directly recruited should not be punished by reduction to Assistant Sub-Inspector. The reduction to Assistant Sub-Inspector or Sub-Inspectors who were appointed by promotion from the rank of Head Constables or Assistant Sub-Inspector is permitted. (iii) Withholding of increment either temporary or permanent (or grade reduction in the case of head constable) is a suitable punishment fall all cases of serious dereliction of duty. It may also be inflicted for culpable ignorance of police procedure, laziness or apathy in 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 one year. (iv) An increment which has fallen due may be withheld for a definite period for inefficiency or unsatisfactory service. In the case of a constable it shall not be withheld for more than one year in the first instance. (iv) An increment which has fallen due may be withheld for a definite period for inefficiency or unsatisfactory service. In the case of a constable it shall not be withheld for more than one year in the first instance. If a subsequent offence justifies extension of this period a departmental enquiry is necessary. (v) Fine is an appropriate punishment for repeated carelessness and disobedience of orders, unpunctuality and the like. Fines should be moderates 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 constable is prohibited. (vi) In the case of head constable and constables minor offences against discipline should be dealt with, firstly, by warning and if this proves ineffectual by the infliction of the minor punishment specified in regulation 216 and 217 (b) or by detailing the offender to a course of more irksome and unpopular duties. (vii) The transfer of a police officer to an unhealthy or unpopular post as a punishment is strictly forbidden. 270(4):-The revising authority may for reasons to be recorded in writing exonerate or may 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 order unless notice has been served on the parties interested and opportunity given them for being heard. 8. Sections 225 and 226 of the CGPR indicate parameters for exercise of discretion by the revisional authority as well as by the disciplinary authority and factors to be kept in mind while imposing the punishment to the delinquent employee. Section 270 (4) of the CGPR provides that the revisional authority while enhancing the punishment reasons have to be recorded in writing and further obliges to give an opportunity of hearing to the delinquent employee/servant. 9. Section 270 (4) of the CGPR provides that the revisional authority while enhancing the punishment reasons have to be recorded in writing and further obliges to give an opportunity of hearing to the delinquent employee/servant. 9. The revisional authority has recorded the following reasons:- izdj.k dk iqu% lq{erk ls xaHkhj voyksdu djus ij ik;k x;k fd vkjksih ds fo:) izekf.kr ik;s x;s vkjksi vR;Ur xaHkhj fdLe ds gS] ftuds fy, mls ^lsok ls i`Fkd* fd;k tkuk gh loksZRre n.M gS] fdUrq fQj Hkh vkjksih dh ikfjokfjd ftEesnkfj;ksa ds izfr ekuuh; vk/kkj ij lgkuqHkwfr iwoZd fopkj dj eSa ,l0ih0 xqIrk] iqfyl egkfujh{kd] N0x0l0iq0 fHkykbZ vkjksih m0fu0 ¼v½ Jh ;qor Jhokl dks lsukuh }kjk fn;s x;s n.Mkns'k fnukad 24-11-2001 dks fujLr djrs gq, bl vkns'k dh izkfIr fnukad ls vfuok;Z lsok fuo`Rr fd;s tkus dk vkns'k nsrk gwWa fuyacu vof/k fuyacu esa gh 'kqekj dh tkosxhA gLrk0@& ,l0ih0 xqIrk N0x0l0iq0 eq[;ky; fHkykbZ 10. A careful perusal of the order impugned would show that while enhancing the punishment from reduction of one increment to compulsory retirement no reasons have been recorded by the revisional authority except holding that charges are serious in nature. The disciplinary authority has already considered the charges proved against the petitioner and only awarded punishment of reduction of pay of one increment for one year, therefore, specific reasons have to be recorded by the revisional authority while remitting, varying or enhancing the punishment imposed upon the delinquent employee keeping in view the provisions contained in Section 270(4) of the CGPR, which has not been done in this case. 11. The Supreme Court in the matter of Kranti Associates Private Limited and another v. Masood Ahmed Khan and others, (2010) 9 SCC 496 while considering the question reasons to be recorded. It was observed as under:- "47. Summarizing the above discussion, this Court holds: (a). In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b). A quasi-judicial authority must record reasons in support of its conclusions. (c). Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d). Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e). (c). Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d). Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e). Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. (f). Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g). Reasons facilitate the process of judicial review by superior Courts. (h). The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. (i). Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j). Insistence on reason is a requirement for both judicial accountability and transparency. (k). If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l). Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or ‘rubber-stamp reasons' is not to be equated with a valid decision making process. (m). It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). (n). Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). (n). Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya v. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". (o). In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process". 12. In the light of principle of law laid down by the Supreme Court in the above-stated judgment, I hold that the revisional authority is absolutely unjustified in interfering with the quantum of punishment awarded by the disciplinary authority as no valid reasons have been recorded while interfering with the punishment awarded by the disciplinary authority. Accordingly, the impugned order dated 15.3.2002 (Annexure P/1) passed by respondent No.2 is hereby set aside. The matter is remitted to respondent No.2 to consider afresh as to whether punishment of reduction of pay by withholding one increment by the disciplinary authority is justified or not in the light of Regulations 225, 226 and 270(4) of the CGPR and take a fresh decision within a period of two months from the date of receipt of certified copy of this order. 13. The writ petition is allowed to the extend indicated herein above.