Research › Search › Judgment

Madhya Pradesh High Court · body

2021 DIGILAW 568 (MP)

Praveen Garg v. State of M. P.

2021-07-26

SUBODH ABHYANKAR

body2021
ORDER 1. The petitioner has filed the present petition under Article 226 of the Constitution of India against the order dated 18.7.2020 passed by the respondent No.3/Superintendent of Police, Ratlam whereby the services of the petitioner, who was posted as Constable have been terminated on account of his involvement in a case registered under section 34(2) of the M.P. Excise Act at crime No.341/2020 at Police Station-Nagda, District-Ujjain. 2. Counsel for the petitioner has submitted that the impugned order has been passed without giving any proper opportunity of hearing and without conducting any formal enquiry, in utter violation of the principles of natural justice. Counsel has submitted that admittedly, the alleged offence took place on 15.7.2020 whereby the the petitioner was arrested on the same day i.e. on 15.7.2020 itself as he was found to be transporting more than 50 bulk liters of illegal liquor contained in 43 boxes. The petitioner was suspended on the same day and a show cause notice was issued to him and while he was in jail, he also submitted the reply on 18.7.2020 but without considering the reply and without conducting any departmental enquiry, the petitioner was dismissed on 18.7.2020 from the services, i.e. within a period of three days from 15.7.2020. Thus, it is submitted that the order is being arbitrary and violative of the provisions of Article 311(2) of the Constitution of India. Therefore, counsel has prayed that the impugned order be set aside. To bolster his submissions, Shri Bhatnagar has also relied on a decision rendered by the Supreme Court in the case of Committee Management and another v. Vice Chancellor and others : [ 2009 (2) SCC 630 ]. Para 22 and 23. Counsel has also relied on the decision rendered by the Supreme Court in the case of Tarsem Singh v. State of Punjab and others : [2006 (13 SCC 581]. Para 11. 3. On the other hand, a reply to the petition has also been filed by the State and Ms. Para 22 and 23. Counsel has also relied on the decision rendered by the Supreme Court in the case of Tarsem Singh v. State of Punjab and others : [2006 (13 SCC 581]. Para 11. 3. On the other hand, a reply to the petition has also been filed by the State and Ms. Maheshwari, learned Counsel for the respondent/State has opposed the prayer and it is submitted that the petition is not maintainable as the petitioner has other efficacious, alternate and statutory remedies available in the form of an appeal under the provisions of Police Regulations 214 and 262 of the Police Regulations and also an appeal under rule 23 of the M.P. Civil Services (Classification,Control and Appeal) Rules, 1966 (hereinafter referred as the C.C.A. Rules of 1966. Thus, it is submitted that instead of having the aforesaid remedy the petitioner has directly approached before this Court and as such the present writ petition deserves to be dismissed on his short ground only. 4. On merits, counsel for the respondent has submitted that it has been found that the petitioner along with the other co-accused person was transporting the alleged illegal country made liquor kept in 43 boxes, in an Alto car and the official uniform was also kept in the car. It is also submitted that more than 50 bulk liters unauthorized liquor has been seized from the possession of the petitioner and when he was questioned about it, no explanation was been provided by him and in fact in his statement recorded at that time by the police, he has admitted that he was carrying the aforesaid liquor to supply it to his uncle’s son. His statement is also placed on record. Counsel has further submitted that looking to the conduct of the petitioner, the necessity of any detailed departmental enquiry was considered impracticable, hence, as provided under rule 19 (2) of the C.C.A. Rules of 1966 the order has been passed after serving show cause notice to the petitioner and after receiving his reply. Thus, it is submitted that no case for quashing of the impugned order is made out at this juncture and the petition is liable to be dismissed. 5. Thus, it is submitted that no case for quashing of the impugned order is made out at this juncture and the petition is liable to be dismissed. 5. In rebuttal, Shri Bhatnagar has submitted that the detailed enquiry could have been dispensed with in a case where a person is convicted in an offence however, in the present case, only the First Information Report was lodged against the petitioner and only within three days’ time his services have been terminated. Thus, it is submitted that the petitioner’s services could not have been terminated in such hasty manner without conducting any detailed enquiry and hence the petition is maintainable before this Court and the remedy of appeal is not an efficacious one. 6. Heard the counsel for the parties and also perused the record. 7. Before proceedings with the merits of the case, it would be fruitful to refer to sub-clause (b) Clause (2) of Article 311 of the Constitution of India, which reads as under :- 311. Dismissal removal or reduction in rank of persons employed in civil capacities under the Union or a State :- (1) No person who is a member of a civil services of the all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed : Provided further that this clause shall not apply : (a) whe re a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry ; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.” (Emphasize supplied) Whereas rule 19 of the CCA Rules of 1966 reads as under :- “Special criteria in certain cases :- Notwithstanding anything contained in rule 14 to rule 18 :- (i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or (ii) where the disciplinary authority is satisfied for reasons to be recorded by it writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules , or (iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold any enquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit.” Provided that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this rule.” It is apparent that provisions of rule 19 are pari materia with the provisions of Art.311(2) of the constitution. 8. Suffice to say that the facts as are admitted in the petition have to be tested on the anvil of sub-clause (b) of Article 311 (2) of the Constitution. 9. So far as the chronology of the events is concerned, The chronological list of events is as under:- Dates Events 16.5.2008 The petitioner was appointed on the post of Constable 15.7.2020 Police Nagda registered a crime vide Crime No. 341/2020 under section 34(2) of the M.P. Excise Act against the petitioner and arrested the petitioner. 15.7.2020 Petitioner was suspended and a show cause notice was given to him. 18.7.2020 Petitioner submitted reply to the show cause notice while lodged in jail. 18.7.2020 Petitioner has been dismissed. 10. So far as the impugned order dated 18.7.2020 is concerned, it is found that in its penultimate paragraph, after considering the applicant’s reply on merits, it has been held as under :- ^^vkj{kd }kjk tks vkijkf/kd ÑR; fd;k x;k] uSfrd v/kksiru dh Js.kh esa gksus ds lkFk lkFk eŒÁŒ iqfyl jsxqys’ku lsok dh lkekU; 'krksZ dh iSjk 64¼3½¼11½ laikfnr /kkjk 29 iqfyl vf/kfu;e 1961 dk Li"V mYya?ku gSA vkj{kd ds }kjk vke turk esa iqfyl dh Nfo dks [kjkc dj vkijkf/kd ÑR; fd;k gSA vr% vkj{kd 898 Áohèk ds }kjk muds in dh xfjek ,oa e;kZnkvksa ds foijhr vkpj.k fd;k gSA eŒÁŒ flfoy lsok oxhZdj.k] fu;a=.k ,oa vihy 1966 ds fu;e 19¼2½ esa bl Ádkj ds Ádj.kksa esa tkap djuk ;qfDr;qDr :i ls O;kogkfjd ugha gksuk Áko/kkfur gSA vkj{kd Áoh.k iqfyl esa vkj{kd Lrj dk ,d ,slk 'kkldh; lsod gS] ftls dkuwu dk Kku gS vkSj ftlls fof/k iw.kZ dk;Z djrs gq, Áns’k dh lqj{kk dks cuk;s j[kus ,oa vke ukxfjdksa dks lqj{kk Ánku djus dh vis{kk dh tkrh gSA** (Emphasize supplied) 11. In the considered opinion of this Court, the aforesaid finding cannot be sustained in the eyes of law, as this Court finds it rather surprising that within three days’ time the petitioner, who was initially appointed as Constable in the department on 16.5.2008, was terminated in a summary manner within three days time. It is not a case where the petitioner had suffered a conviction, in such circumstances, the respondents could have invoked subclause (a) of Article 311 (2) of the Constitution or Rule 19(i) of the Rules of 1966 which are pari materia to Art. 311(2)(a) of the Constitution. It is not a case where the petitioner had suffered a conviction, in such circumstances, the respondents could have invoked subclause (a) of Article 311 (2) of the Constitution or Rule 19(i) of the Rules of 1966 which are pari materia to Art. 311(2)(a) of the Constitution. But before passing any order under Article 311(2)(b) as aforesaid, the authority passing the order is required to record in writing that it is not reasonably practicable to hold such inquiry. This Court is of the considered opinion that it is not the mandate of the Constitution that while passing the order it would be mentioned in writing that,’it is not reasonably practicable to hold such enquiry’, but as a matter of fact, it has to be demonstrated in the order itself by assigning reasons as to why it is not reasonably practicable to hold such enquiry. In the present case, the respondent has held that under Rule 19 (ii) of the Rules of CCA Rules, 1966 it is provided that in such matters it is not practicable to hold an enquiry but this Court does not find the said reasoning as satisfactory and in accordance with law as it was incumbent upon the respondent to form an opinion as to why it would not be practicable to hold the enquiry in the present case. 12. It is also apparent that undue haste has been shown by the respondents for the reasons best known to them to pass the impugned order within 3 days time from the date of issuance of show cause notice to the final order of termination. Admittedly, the petitioner was in jail when he submitted the reply to the show cause notice and was not able to take the necessary legal assistance which he could being lodged in jail. The respondents have also relied upon a statement given by the petitioner at the time of his arrest and it is being projected as his confession of guilt, but in the considered opinion of this Court, such a confession recorded by the police is of no value in the eyes of law and cannot be used to terminate the services of the petitioner without a proper and detailed enquiry. In such circumstances, it is very difficult for this Court to hold that the principles of natural justice have been followed in the present case. In such circumstances, it is very difficult for this Court to hold that the principles of natural justice have been followed in the present case. Thus, prima-facie, this Court finds that undue haste has been shown by the respondents in passing the impugned order of dismissal. 13. It is true that a police officer who is found to be involved in a criminal case cannot be shown any leniency while inflicting the punishment. However, soon after the FIR and before conviction is recorded, the method of inflicting such punishment cannot be circumvented by simply saying that it is not reasonably practicable to conduct any enquiry. 14. In the case of Tarsem Singh (supra), it is observed by the Supreme Court in para 11 as under : 11. We have noticed hereinbefore that the formal inquiry was dispensed with only on the ground that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means. No material has been placed or disclosed either in the said order or before us to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document. It is further evident that the said order of dismissal was passed, inter alia, on the ground that there was no need for a regular departmental inquiry relying on or on the basis of a preliminary inquiry. However, if a preliminary inquiry could be conducted, we fail to see any reason as to why a formal departmental inquiry could not have been initiated against the appellant. Reliance placed upon such a preliminary inquiry without complying with the minimal requirements of the principle of natural justice is against all canon of fair play and justice. The Appellate Authority, as noticed hereinbefore, in its order dated 24.6.1998 jumped to the conclusion that he was guilty of grave acts of misconduct proving complete unfitness for police service and the punishment awarded to him is commensurate with the misconduct although no material therefor was available on record. It is further evident that the Appellate Authority also mis-directed himself in passing the said order in so far as he failed to take into consideration the relevant facts and based his decision on irrelevant factors.(Emphasis supplied) 15. It is further evident that the Appellate Authority also mis-directed himself in passing the said order in so far as he failed to take into consideration the relevant facts and based his decision on irrelevant factors.(Emphasis supplied) 15. So far as the availability of an alternative remedy is concerned, in Committee Management and another (supra), it is held by the Supreme Court as under:- 22. Apart from the fact that a statutory authority cannot consider the validity of a Statute, as has been urged before us by Mr. Choudhari, it is beyond any doubt or dispute that availability of an alternative remedy by itself may not be a ground for the High Court to refuse to exercise its jurisdiction. It may exercise its writ jurisdiction despite the fact that an alternative remedy is available, inter alia, in a case where the same would not be an efficacious one. 23. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior Courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the 13 observations made by this Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors. [ (1998) 8 SCC 1 ] : “15. …. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. ….” (Emphasis supplied) 16. In view of the aforesaid decisions, this Court is of the considered opinion that the under the facts and circumstances of the case, where there exists a statutory alternative remedy, the same cannot be said to be an effective remedy when there is a clear violation of the principles of natural justice. As a result, the petition stands allowed and the impugned order of dismissal dated 18.7.2020 (Annexure-P/1) is hereby quashed. However,the matter is remanded back to the respondents to initiate an enquiry against the petitioner in accordance with law as provided under rule 19(ii) of the C.C.A. Rules, 1966. As a result, the petition stands allowed and the impugned order of dismissal dated 18.7.2020 (Annexure-P/1) is hereby quashed. However,the matter is remanded back to the respondents to initiate an enquiry against the petitioner in accordance with law as provided under rule 19(ii) of the C.C.A. Rules, 1966. It is made clear that this Court has not reflected on the merits of the case. 17. Accordingly, the petition stands disposed of. No Costs.