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Madhya Pradesh High Court · body

2017 DIGILAW 885 (MP)

RAJU SINGH AHIRWAR v. STATE OF M. P.

2017-08-03

S.K.AWASTHI, SANJAY YADAV

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ORDER : Sanjay Yadav, J. Appellant takes exception to order dated 29.05.2017 passed in Writ Petition No. 3024/2017 whereby challenge to issuance of charge-sheet on 24.04.2017 by the Superintendent of Police has been negatived. 2. Besides other grounds, main ground of challenge to the charge-sheet was that joint enquiry having been ordered by the Superintendent of Police, Shivpuri, against the petitioner, holder of the post of Assistant Sub-Inspector and a Constable in purported exercise of powers under Rule 18 of M.P. Civil Services (Classification, Control and Appeal) Rules, it was beyond the competence of the Superintendent of Police to issue charge-sheet, which was within competence of Deputy Inspector General of Police having the Disciplinary Authority of the Assistant Sub-Inspector of Police. 3. Grievance of the petitioner is that though said ground was raised, however, learned Single Judge having glossed over the same dismissed the petition holding that no interference could be caused at the stage of charge-sheet. Contention on behalf of the petitioner is that since very jurisdiction of the Superintendent of Police was questioned, incumbent it was on the part of the Writ Court to have addressed the issue. However, while not addressing same grave prejudice is caused to the petitioner who has been subjected to departmental enquiry on the basis of the charge-sheet issued by an Authority beyond his jurisdiction. 4. Learned counsel appearing for respondents does not dispute as to petitioner's contention as regards ground of jurisdiction raised in the petition. It is, however, submitted that the same should be treated as negatived. It is further contended that being an Assistant Sub-Inspector, Rules of 1966 are not applicable but provisions contained in the Madhya Pradesh Police Regulations are applicable and as per Regulation 221 it is within the competence of the Superintendent of Police to issue the charge sheet. 5. The question is as to whether it is within the competence of the Superintendent of Police to issue a charge sheet and direct for a joint enquiry against the petitioner who holds the post of Assistant Sub-Inspector of Police and against the constable. 6. Petitioner has placed reliance on Rule 18 of Rules 1966 which mandates : "18. Common proceedings. The question is as to whether it is within the competence of the Superintendent of Police to issue a charge sheet and direct for a joint enquiry against the petitioner who holds the post of Assistant Sub-Inspector of Police and against the constable. 6. Petitioner has placed reliance on Rule 18 of Rules 1966 which mandates : "18. Common proceedings. - (1) Where two or more Government servants are concerned in any case, the Governor or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding : Provided that the powers conferred on the Governor under this rule shall in case of Judicial Officers, be exercised by the Chief Justice. Note.- If the authorities competent to impose the penalty of dismissal on such Government servants are different, an order for taking disciplinary action in a common proceeding may be made by the highest of such authorities with the consent of the others. (2) Subject to the provisions of sub-rule (3) of rule 12, any such order shall specify : (i) the authority which may function as the disciplinary authority for the purpose of such common proceeding; (ii) the penalties specified in rule 10 which such disciplinary authority shall be competent to impose; and (iii) whether the procedure laid down in rule 14 and rule 15 or rule 16 shall be followed in the proceeding." 7. However, note appended with the Schedule annexed with the Rules 1966 stipulates : "Class III (Non-ministerial) posts in the Police Department are governed by the Madhya Pradesh Police regulations framed under the provisions of the Indian Police Act. The Control and Appeal Rules, will, therefore, not apply to them." The said stipulation prohibits the applicability of 1966 Rules to Class III (non-ministerial) post in Police Department, therefore, the arguments as to applicability of the Rules of 1966 has to be given quietus in the present fact situation. 8. The question, however, still looms as to whether it is the Superintendent of Police who could issue a charge sheet to the Assistant Sub-Inspector or it be issued by the Deputy Inspector General of Police. 9. The M.P. Police Regulation 221 provides for that : "221. 8. The question, however, still looms as to whether it is the Superintendent of Police who could issue a charge sheet to the Assistant Sub-Inspector or it be issued by the Deputy Inspector General of Police. 9. The M.P. Police Regulation 221 provides for that : "221. Powers of senior Superintendent of Police and Superintendent of Police - An Assistant Inspector General or a Superintendent shall exercise the following powers of punishments :- (a) Power to inflict any of the punishments specified in Regulation 214 to 217 on head constables and constables. (b) Power to inflict on Sub-Inspector and Assistant Sub-Inspectors the penalties specified in Regulation 214 (i) and (iv) or in Regulation 215(a) and (b) or to withhold the increment of a Sub Inspector and an Assistant Sub-Inspector for a period of one year from the date on which it falls due. (c) Power to reduce the pay of Sub Inspector and an Assistant Sub-Inspector. (c-1) Power to inflict the punishment of censure on Inspector (d) Power to suspend and officer of the rank of constable to Inspector pending enquiry into his conduct. 10. Thus, in case where the minor penalty is contemplated, the Assistant Inspector General of Police or the Superintendent of Police has the competence to inflict the penalty. But for a higher punishment such as withholding of promotion, withholding of increments of pay including stoppage at an efficiency bar or stagnation allowance, reduction to a lower post, recovery from pay of the whole or part of any pecuniary loss caused to Government, removal from service, dismissal from service, compulsory retirement. Police Regulation 222 is attracted which provides for : "222. - Power of D.I.G. - A Deputy Inspector General exercises the following power of punishment : - (a) Power to suspend officers up to the rank of Inspector pending enquiries into their conduct; (a) Power to suspend any non-gazetted police officers pending enquiries into their conduct. (b) Power to inflict any of the punishments specified in Regulations 216 and 217 on head constables and constable. (c) Power to inflict on head constables, constables, Assistant Sub-Inspector, Sub-Inspector and officers of equivalent ranks any of the punishments specified in Regulation 214 and 215. (b) Power to inflict any of the punishments specified in Regulations 216 and 217 on head constables and constable. (c) Power to inflict on head constables, constables, Assistant Sub-Inspector, Sub-Inspector and officers of equivalent ranks any of the punishments specified in Regulation 214 and 215. (d) Power to inflict on Subedar, Assistant Police Prosecutors, Police Prosecutors Inspectors and officers of equivalent rank any of the punishment specified in Regulation 214 and 215 other than the punishment for removal dismissal or compulsory retirement from service]. 11. In the case at hand the charge sheet does not contemplate that it is for minor penalty or major penalty. 12. Police Regulation 228 stipulates : "228:- D. E.:-When and how held:- In every case of removal, compulsory retirement from service, reduction in rank, grade or pay or withholding of increment for a period in excess of one year a formal proceeding must be recorded by the Superintendent in the prescribed form, -setting forth. (a) The charge; (b) The evidence on which the charge is based; (c) The defence of the accused; (d) The statements of his witnesses (if any); (e) The finding of the Superintendent, with the reasons on which it is based; (f) The Superintendent's final order or recommendation, as the case may be; Provided that it shall not be necessary to record a formal proceeding, if due to exigencies of service and not by reason of any misconduct or fault on his part, a police officer is transferred from a post carrying a special or specialist pay in the special Armed Force, Motor Transport or Radio Telegraphy sections to a post not carrying such pay and reduction in his pay is caused by reason of such transfer. Note (1) If a written defence is tendered, it should be accepted and attached to the record. Note (2) Reasonable time should; however, be given to the accused person to submit his written defence after the charge sheet is handed over to him. Note (3) The travelling allowance of the defence witnesses shall be borne by the department. In Order to facilitate the production of defence witnesses, the Inquiry officer on the application of the accused should issue a notice to the defence witnesses to present themselves on the date so fixed. If the witnesses do not turn up after such notice, it shall be the responsibility of the accused to produce his own witnesses. In Order to facilitate the production of defence witnesses, the Inquiry officer on the application of the accused should issue a notice to the defence witnesses to present themselves on the date so fixed. If the witnesses do not turn up after such notice, it shall be the responsibility of the accused to produce his own witnesses. 13. Thus, in all cases whether it is for minor penalty or major penalty Superintendent of Police has been authorized in case of non-ministerial Class III police personnel, to initiate the disciplinary proceedings since initiation of disciplinary proceedings is not the same thing as imposition of penalty, Article 311(2) of the Constitution of India does not get attracted at the stage of issuance of charge-sheet. However, when it comes to infliction of punishment, the procedure as prescribed under Regulation 229 has to be followed which envisages : "229:- D.E. : - Final orders in :- If the Superintendent is empowered to pass the final order in the case, the papers will be filed in his office, a copy of the order being sent to the Deputy Inspector-General with the monthly punishment return. In other cases they will be forwarded as follows : - (a) Reduction in rank of an Assistant Sub-Inspector to the Deputy Inspectors-General through the District Magistrate. (b) All proposals for the dismissal, removal or compulsory retirement of an officer of and above the rank of Assistant Sub-Inspector should be forwarded to the proper authority though the District Magistrate except in cases where an officer is not serving in a district. (c) In the case of the transfer of an officer of or above the rank of Inspector, the Superintendent of Police should forward the District magistrate's suggestion to the Deputy Inspector-General of police." 14. Further, Police Regulation 228 nowhere limits the aspect as to a solo enquiry or a joint enquiry. In other words whether it is an enquiry against a police personnel or more than one, the Superintendent of Police under Regulation 228 has the competency to initiate the proceedings. 15. The issue as to whether it is within the competence of the Superintendent of Police to issue a charge sheet against the petitioner and direct for a joint enquiry is thus answered against the petitioner. 16. The initiation of disciplinary proceedings since is not vitiated no interference is caused. 17. Consequently, appeal fails and dismissed. No costs.