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2018 DIGILAW 1011 (MP)

Shiv Kumar Sengar v. State of M. P.

2018-12-07

S.A.DHARMADHIKARI, SHEEL NAGU

body2018
ORDER 1. The present intra Court appeal assails the final order dated 29.6.2017 passed by coordinate Bench of this Court dismissing a petition assailing the order of penalty of removal of petitioner from service while functioning as Constable in Police under the Government of M.P. 2. Learned counsel for the rival parties are heard on the question of admission. 3. Learned counsel for appellant/petitioner has raised singular grievance by referring to appellate order dated 5.6.2007 vide Annexure P-2 by which appeal preferred by appellant/petitioner against his removal from service was dismissed. It is submitted by learned counsel for appellant/petitioner that memo of appeal preferred by appellant/petitioner before the Appellate Authority, the Deputy Inspector General of Police, Gwalior Range, on 30.3.2007 was rejected by the aforesaid order dated 5.6.2007 (Annexure P-2) without considering all the contentions/grounds raised therein and therefore to that extent, the order of Appellate Authority is non-speaking. It is submitted by referring to the decision of the apex Court in the case of Kranti Associates Private Limited and another v. Masood Ahmed Khan and others, (2010) 9 SCC 496 that the least that is expected of the Appellate Authority while adjudging the legality and validity of an order of penalty which is as grave as that of removal from service is to deal with each of the contentions raised in the appeal and render findings in regard to each of those contentions. The findings need not be very detailed but should also not be cryptic so as not to disclose the mind of the Appellate Authority while allowing or rejecting each of the contention/ground raised. 4. In view of above restrictive nature of arguments raised herein, the consideration by this Court is also going to be correspondingly restrictive. 4.1 A bare perusal of memo of appeal vide Annexure P-2 reveals that various grounds and submissions were raised in support of the challenge to the order of removal of service including a very pertinent ground that despite the prosecution witnesses not supporting the earlier version in the preliminary enquiry, though admitting their signatures on their statements recorded during preliminary enquiry, yet the charges were found proved on the strength of uncorroborated statements of those witnesses recorded during preliminary enquiry held before issuance of chargesheet. 4.2 Pertinently, the order of the Appellate Authority dated 5.6.2007 starts with detailing three charges alleged against the petitioner followed by seven submissions/grounds raised by the appellant/petitioner in his appeal and thereafter the reasons for finding the submissions of appellant in his appeal to be unsatisfactory are given. 4.3 These reasons assigned by the Appellate Authority are as follows : (i) The enquiry conducted is in accordance with the procedure prescribed followed by inflicting appropriate punishment. (ii) Superintendent of Police is competent to cancel show-cause notice and initiate disciplinary proceedings. (iii) Charges No. 2 and 3 are fully established and it is not necessary for the charges alleged to be found proved. (iv) The charges are found fully established based on the statements of prosecution witnesses and evidence collected. (v) The prescribed procedure has been followed before imposition of the penalty. (vi) Charges No. 1 and 2 are fully established for which commensurate penalty has been inflicted. 4.4 The aforesaid reasons reveal that the Appellate Authority has not assigned the real reasons/findings but has merely mentioned its conclusion. It is one thing to say that particular act has been properly done but it is different to explain that how it was properly done. Assigning of reasons is not only crucial for sustaining a valid and lawful order but is also helpful for the next higher authority to know the mind of lower authority which took the decision so that the higher authority can properly adjudge its legality and validity. The reasons are the bridge between the facts and the conclusion which are known as "findings" in legal jargon. 5. Another very surprising aspect in the appellate order is that it has not addressed on the important issue as to how the material (statements of PWs) collected during preliminary enquiry conducted prior to issuance of charge-sheet, can be relied against the delinquent employee without said statements having been proved by the same witnesses during the course of enquiry after issuance of charge-sheet. 6. More so, the scheme of M.P. Police Regulations which inter alia governs the subject of discipline and appeal in respect of the appellant/petitioner who happens to be a Constable in the Police provides in Clause 262 for the remedy of appeal against an order of punishment passed under Clause 214 where one of the punishment is that of removal as inflicted upon the petitioner. Pertinently, Clause 273 delineates the statutory obligations upon the Appellate Authority while deciding an appeal preferred under Clause 262. For ready reference and convenience Clause 273 of M.P. Police Regulations is reproduced below : "273. Appeals - order passed on. - Every order passed in appeal shall contain the reason on which it is based. If an order of dismissal is annulled the officer annulling it shall declare whether the period of enforced absence from duty shall count towards pension or not. A copy of every appellate order with the reason on which it is based, will be given free of cost to the appellant." 7. The plain reading of Clause 273 of M.P. Police Regulations reveals that it is incumbent upon the Appellate Authority to give reason while passing an order of allowing or dismissing an appeal. The mandate of the statute requiring an appellate order to be a speaking one is very clear. When the provision says that the appellate order should contain reasons, it goes without saying that such order ought to assign reasons for accepting or rejecting each and every contention raised by the appellant in his appeal. 7.1 The statutory duty cast upon the Appellate Authority is required to be discharged in letter and spirit to vindicate the requirement and object of Clause 273 of the Regulations. 8. The apex Court in large number of cases emphasised that judicial, quasi judicial and even an executive order which causes consequence of adverse nature ought to contain which are good enough, 9. Consequent upon the above discussion, this Court has no manner of doubt that the impugned appellate order dated 5.6.2007 (Annexure P-2) passed by the Deputy Inspector General of Police, Gwalior Range being non-speaking cannot sustain the judicial scrutiny under Article 226 of the Constitution and therefore has to be sacrificed at the alter of judicial review. 10. Conclusively, this appeal stands allowed to the following extent : (i) The impugned order of learned Single Judge dated 29.6.2017 passed in W.P. No. 5519/2007 is set aside. (ii) The order of the Appellate Authority dated 5.6.2007 (Annexure P-2) passed by the Deputy Inspector General of Police, Gwalior Range is further set aside. 10. Conclusively, this appeal stands allowed to the following extent : (i) The impugned order of learned Single Judge dated 29.6.2017 passed in W.P. No. 5519/2007 is set aside. (ii) The order of the Appellate Authority dated 5.6.2007 (Annexure P-2) passed by the Deputy Inspector General of Police, Gwalior Range is further set aside. (iii) The Appellate Authority is directed to reconsider the appeal of the appellant/petitioner vide Annexure P-12 dated 30.3.2007 by passing a speaking order containing reasons after dealing with each and every ground raised by the appellant/petitioner in his appeal. (iv) The aforesaid exercise of deciding the appeal be concluded within three (3) months from the date of receipt of copy of this order by the Appellate Authority i.e. respondent No. 3.