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Madhya Pradesh High Court · body

2020 DIGILAW 72 (MP)

Swami Deen Singh v. State M. P.

2020-01-10

SANJAY DWIVEDI

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ORDER 1. Since pleadings are complete and counsel for the parties are ready to argue the matter, therefore, it is heard finally. 2. This petition under Article 226 of the Constitution of India, has been been filed by the petitioner challenging the orders dated 5.4.2011 (Annexure-P-1) and 14.2.2011 (Annexure-P-1-A). 3. The facts lie in a narrow compass. Suffice it to say that the petitioner is working on the post of Assistant Sub-Inspector, P.S. Kotwali, District Panna and while he was posted at P.S. Pawai, there were some illegalities committed by him and misbehaved with one lady who made a complaint to the Human Rights Commission (in short the 'Commission') and vide order dated 1.7.2010, the Commission passed an order whereby a fine of Rs. 30,000/- was imposed upon the petitioner and directed that the same be paid to the complainant and the State has been given liberty to recover the said amount by adopting legal procedure against the petitioner. Thereafter, a charge-sheet was issued against the petitioner on 22.6.2009 labelling a single charge that the petitioner while registering an offence vide crime No. 108/08, not registered the offence under section 376 of the Code of Criminal Procedure. An enquiry was conducted in which the petitioner has been acquitted from the charge labelled against him. Although, the order passed by the Commission is subsequent to the enquiry initiated against the petitioner in which he has been acquitted but the Authority taking note of the order passed by the Commission, decided to review its order and power of review has been exercised by the Authority by issuing an order dated 14.2.2011 (Annexure-P-1-A) and thereafter, another order has been issued on 5.4.2011 (Annexure-P-1) calling the relevant record. 4. Counsel for the petitioner submits that exercising the power of review by the Authority as per the provisions of Regulation 270 of the Madhya Pradesh Police Regulations beyond the period of six months, cannot be done in view of the law laid down by this Court in umpteen cases. He has also contended that the power of review has been exercised by the Authority mentioning in the order impugned that since the recommendation has been made by the Commission, therefore, the Authority is acting on the said recommendation. He submits that it clearly indicates that there was no independent application of mind by the Authority for exercising such power of review. He submits that it clearly indicates that there was no independent application of mind by the Authority for exercising such power of review. It is also contended by him that even before exercising the power of review, the Authority is under an obligation to provide an opportunity of hearing to the petitioner but in the case at hand, even no show cause notice was issued to the petitioner before exercising such power and, therefore, he is seeking quashment of said proceeding under which the Authority has acted upon and exercised the power of review. 5. Per contra, Government Advocate appearing for the respondent/State relied upon the stand taken by the Authority in a reply filed by them. He submits that there was no recommendation made by the Commission for initiating the disciplinary proceeding against the petitioner and even otherwise, the Authority has not exercised the power of review and decided to initiate the disciplinary proceeding only in view of the recommendation of the Commission but it was an independent decision of the Authority to initiate the disciplinary proceeding against the petitioner. He submits that the letter on which the petitioner is relying upon does not indicate that the decision has been taken by the Authority in pursuance to the recommendation made by the Commission asking the Authority to initiate the disciplinary proceeding against the petitioner. He further submits that so far as the limitation prescribed for exercising the power of review is concerned, the Division Bench of Gwalior High Court in case of State of M.P. v. Satyendra Singh Bhadoriya in Writ Appeal No. 227/2017 has laid down that since the provisions of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 are not applicable in the case of the petitioner, therefore, upper limit for exercising the power of review is prescribed in that Rules would not be applicable in the present case and that can be exercised at any point of time. He further submits that so far as the contention for providing an opportunity of hearing is concerned, the petitioner may get an opportunity before the Disciplinary Authority to prove himself innocent and, therefore, if such an irregularity is alleged and committed by the Authority, the action of the Authority cannot be vitiated. 6. He further submits that so far as the contention for providing an opportunity of hearing is concerned, the petitioner may get an opportunity before the Disciplinary Authority to prove himself innocent and, therefore, if such an irregularity is alleged and committed by the Authority, the action of the Authority cannot be vitiated. 6. Considering the arguments advanced by the counsel for the parties as also on a bare perusal of the record, it reflects that the document on which the petitioner is relying upon saying that the Authority has exercised the power of review and took a decision to initiate the disciplinary proceeding against the petitioner only on the basis of the recommendation made by the Commission, but in fact in the order of the Commission, there was no such suggestion given by the Commission. For this purpose, the petitioner has placed reliance upon a letter dated 14.2.2011 (Annexure-P-1-A) and in the subject matter of the same, order made by the Commission is referred. However, I am not convinced with the contention of the counsel for the petitioner because in the said letter it is only a subject in which to specific the subject only, the order of the Commission is referred but in the recital of that letter, nowhere it is mentioned that the decision for initiating the disciplinary proceeding against the petitioner was being taken in pursuance to the recommendation made by the Commission. Therefore, this is only a misconception in the mind of the petitioner that the Authority was acting on the basis of the recommendation made by the Commission whereas no such recommendation was available in their order and it appears that it was not an independent decision of the Authority, therefore, such decision is liable to be quashed but that misconception does not prevail in this case and it is clear that the Authority has applied its own mind for initiating the disciplinary proceeding against the petitioner, therefore, this contention of the petitioner is without any substance and is hereby rejected. The main contention which has been raised by the counsel for the petitioner regarding limitation for exercising the power of review, as per the decision of the Division Bench in the case of Satyendra Singh Bhadoriya (supra), it is also clear that there is no limitation prescribed for exercising the power of review under Regulation 270 of the Madhya Pradesh Police Regulations and, therefore, this contention of the petitioner is also without any substance. However, I find force in the contention raised by the counsel for the petitioner that before initiating departmental proceeding and exercising the power of review, the Authority has to provide an opportunity of hearing and to issue notice to the petitioner as per the provisions of Regulation 270 of the Madhya Pradesh Police Regulations which is quoted hereinbelow: 270. (1) Every order of punishment or exoneration, whether original or appellate shall be liable to revision suo-motu by any authority superior to the authority making the order. (2) Every appellate order by a final appellate authority shall be liable to revision by such final appellate authority on application made in that behalf by the person against whom the order has been passed. Explanation:- For the purpose of this clause the expression "final appellate authority" means the final authority empowered to hear an appeal under Police Regulation 262. (3) The provisions of Regulations 266, 267, 268 and 271 shall be as nearly as may be apply to an application for revision. (4) The revising authority may for reason to be recorded in writing exonerate or may remit vary of enhance the punishment imposed or may order a fresh enquiry of 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 an opportunity given to them for being heard. Here in this case, on earlier occasion, the petitioner has been acquitted but the Authority has decided to initiate the enquiry afresh, therefore, the petitioner should have been given a show-cause notice before exercising the power of review. 7. Here in this case, on earlier occasion, the petitioner has been acquitted but the Authority has decided to initiate the enquiry afresh, therefore, the petitioner should have been given a show-cause notice before exercising the power of review. 7. In view of the aforesaid and considering the reply filed by the respondents to the said ground that the Authority in their stand has stated that the petitioner would get an opportunity before the Disciplinary Authority but the said stand does not fulfil the mandatory requirement of Regulation 270 of the Madhya Pradesh Police Regulations. In absence of compliance of said requirement, the conduct of the Authority and the orders passed by them deciding to review their earlier decision is not sustainable, therefore, is hereby set-aside. However, as per the decision of the Division Bench in the case of Satyendra Singh Bhadoriya (supra), since no limitation for exercising the power of review has been held, therefore, the respondent/State is at liberty that if they still want to initiate any proceeding against the petitioner then they may exercise the power of review after complying with the mandatory requirement as provided under Regulation 270 of the Madhya Pradesh Police Regulations. 8. In view of above, the orders impugned are hereby set-aside. Resultantly, the petition filed by the petitioner stands allowed with the aforesaid observations.