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2021 DIGILAW 171 (MP)

Brijesh Kumar Shrivastav v. State of M. P.

2021-02-17

S.A.DHARMADHIKARI

body2021
ORDER 1. This Writ Petition has been filed under Article 226/227 of the Constitution of India assailing the order of punishment of removal from services dated 31.7.2004 (Annexure P/1) passed by the Superintendent of Police, District Morena as well as order dated 5.1.2005(Annexure P/2), whereby order dated 31.7.2004 have been affirmed by the DIG, Chambal Range, Gwalior so also order dated 24.8.2007 (Annexure P/3) passed by respondent No.3 rejecting the appeal filed by the petitioner. 2. The brief facts leading to filing of this case are that the petitioner was appointed on the post of Constable on 20.7.1988 in District Sehore after following due procedure, from where he was transferred to Shivpuri. Thereafter, he was transferred to PTS, Tighra and in December, 2002, he was transferred from PTS, Tighra to District Morena. On 12.2.2003, the petitioner was deployed at Police Lines, Morena. Due to personal ailment, the petitioner came into depression and he could not attend the duties w.e.f. 12.2.2003 to 20.5.2003. However, he reported for duty on 20.5.2003 and also submitted the medical certificates. For the aforesaid lapse, charge sheet was issued against the petitioner for remaining absent from duties for 98 days w.e.f. 12.2.2003 to 20.5.2003. The enquiry was conducted in accordance with rule, however, while recording the statements of Mukesh Dixit (P.W.1), Subedar of Police Line Morena and Moharmanlal (P.W.2), Head Constable, the petitioner was not given any notice of the date of hearing and the statements were recorded behind his back, which is violative of principle of natural justice. The enquiry was proceeded ex-parte without issuing any notice. After conducting the enquiry behind the back of the petitioner, the Enquiry Officer submitted the enquiry report (Annexure P/4) (holding the charges as proved). After that, a show cause notice alongwith the proposed punishment was issued on 19.5.2004 with the proposal to remove the petitioner from services. Vide order dated 31.7.2004 (Annexure P/1), the petitioner was removed from services. The appeal against the aforesaid order filed before DIG, Chambal Range, Gwalior was also rejected. 3. Learned counsel for the petitioner submits that the orders (Annexures P/1, P/2 and P/3) are fully illegal, without jurisdiction, and contrary to the provisions of the M.P. Police Regulations since the petitioner did not absent himself willfully but on account of his personal ailment of serious depression. 3. Learned counsel for the petitioner submits that the orders (Annexures P/1, P/2 and P/3) are fully illegal, without jurisdiction, and contrary to the provisions of the M.P. Police Regulations since the petitioner did not absent himself willfully but on account of his personal ailment of serious depression. Learned counsel for the petitioner further submitted that the examination-in-chief ought to have been recorded in the presence of the petitioner and mere giving opportunity to cross examine the statements of witnesses recorded behind his back vitiate the enquiry. The punishment of removal from services is a major punishment, which could not have been imposed on a person, who has rendered more than 15 years of services from the date of joining. The punishment order affects the petitioner and his family seriously and deprived them by means of livelihood and therefore, the punishment is disproportionate and liable to be set aside. 4. Learned counsel for the petitioner by inviting attention of this Court to Regulation 226 of the M.P. Police Regulation, submitted that normally the punishment of dismissal from services should not have been imposed and the same should have been imposed looking to the gravity of offence. 5. Per contra, learned Government Advocate for the respondents/State supported the impugned orders and submitted that since the charges have already been proved, therefore, there is no scope of any interference either on merits or on the quantum of punishment since the punishment was not disproportionate. In such circumstances, the writ petition deserves to be dismissed. 6. Learned Government Advocate further submitted that there is no procedural error in conducting the enquiry, therefore, no interference is called for. Moreover, the petitioner did not submit the proof regarding his ailment and also did not inform before availing the leave. Police Department is a disciplined department and such conduct could not be tolerated. The petitioner was holding a responsible post of Constable and the petitioner has rightly been removed from the services. 7. Heard the learned counsel for the parties and perused the record. 8. Admittedly, the provisions of Regulation 226 of the M.P. Police Regulations have not been followed in the instant case. The petitioner was holding a responsible post of Constable and the petitioner has rightly been removed from the services. 7. Heard the learned counsel for the parties and perused the record. 8. Admittedly, the provisions of Regulation 226 of the M.P. Police Regulations have not been followed in the instant case. The petitioner was serving on the lowest post of Constable, therefore, before passing the order of extreme punishment of removal from services, the provisions of Regulation 226 of the M.P. Police Regulations particularly Clauses (iv) and (vi) should have been taken into consideration. For ready reference, Regulation 226 is reproduced below, which reads thus: “226. Punishments -- offences for which given- the following rules should be observed in determining what penalty should be awarded for any particular offence ;- (i) XX XX XX (ii) XX XX XX (iii) XX XX XX (iv) Withholding of increment either temporary or permanent (or grade reduction in the case of head constables) is a suitable punishment for 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 instances 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. Note- When an officer in a graded posts is reduced permanently, his place in the grade to which he is reduced must be determined at the time of passing the order of reduction with due regard to the amount of punishment deserved. (v) XX XX XX (vi) Fine is an appropriate punishment for repeated carelessness and disobedience of orders, unpunctuality and the like. Fines should be moderate in amount; the loss of half a month’s pay is the utmost that should ever be inflicted save in very exceptional circumstances. The fining of constables is prohibited.” 9. (v) XX XX XX (vi) Fine is an appropriate punishment for repeated carelessness and disobedience of orders, unpunctuality and the like. Fines should be moderate in amount; the loss of half a month’s pay is the utmost that should ever be inflicted save in very exceptional circumstances. The fining of constables is prohibited.” 9. When the aforesaid provision is kept in juxtaposition to Clause 64 (iv) of M.P. Police Regulations, the same reveals that the aforesaid provision pertains to maintaining discipline; to observe sub-ordination and to obey lawful orders promptly, even then Clauses (iv) and (vi) have been framed in Regulation 226, which are applicable to Constables and which pertains to the penalty to be awarded to a Constable. The charges in this case were framed with regard to remaining absent without permission/leave, therefore, passing extreme order of punishment of removal from services appears to be extreme. The Disciplinary Authority as well as the Appellate Authority ought to have been taken a lenient view in imposing the punishment. It is not a case that the petitioner is in habit of remaining absent on earlier occasions as well and he has been punished for some misconduct earlier also. From the facts of the case, it is seen that Regulation 226 of the M.P. Police Regulations was not taken into consideration by the Disciplinary Authority as well as Appellate Authority, therefore, the Disciplinary Authority is directed to examine the case of the petitioner vis-a-vis to Regulation 226 of the M.P. Police Regulations particularly Clauses (iv) and (vi) of Regulation 226 and pass a fresh order in accordance with law. 10. For the reasons stated hereinabove, the impugned orders passed by the Enquiry Officer/ Disciplinary Authority/Appellate Authority are hereby upheld except upholding the quantum of punishment. 11. Accordingly, the order of removal from services is hereby set aside. The matter is remanded back to the Disciplinary Authority on the quantum of punishment. The Disciplinary Authority is directed to impose any punishment other than removal or termination and impose any other punishment in accordance with law as expeditiously as possible, preferably within a period of three months from the date of receipt of certified copy of the order. 12. Needless to state, before passing any order, personal hearing to the petitioner may be afforded. The Writ Petition stands partly allowed. No order as to costs.