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2021 DIGILAW 72 (MP)

Mishrilal v. State of Madhya Pradesh

2021-01-27

SUBODH ABHYANKAR

body2021
ORDER : Subodh Abhyankar, J. 1. This writ petition has been filed by the petitioner under Article 226 of the Constitution of India against the order dated 25.6.2005 (Annexure P-1) passed by the respondent No. 3/Superintendent of Police, District Betul as also the order dated 25.8.2005 (Annexure P-2) passed by the respondent No. 2/Deputy Inspector General of Police, Bhopal. Vide order dated 25.6.2005, in a departmental enquiry initiated against the petitioner, he has been imposed with a penalty of compulsory retirement, which has also been affirmed by the appellate authority vide its order dated 25.8.2005. 2. In brief, the facts of the case are that initially the petitioner was appointed as Constable in the Police Department on 1.1.1983 and thereafter he was promoted as Head Constable on 19.10.2004. On 22.11.2004 he took one Jittu alias Jitendra, an accused to the Sessions Court, Bhopal from the Reserve Lines, Betul and while coming back from Bhopal, at the request of the said accused, the petitioner alighted from the bus and went to a Dhaba from where the accused absconded. It is an admitted fact that subsequently the accused surrendered before the police and was again arrested. 3. Shri Ayush Choubey, learned counsel for the petitioner at the outset has submitted that he does not wish to press the present writ petition on merits of the departmental enquiry, however, his argument is solely based on the disproportionality of penalty of compulsory retirement imposed on the petitioner. Learned counsel for the petitioner has further submitted that admittedly the aforesaid accused was accompanied by two persons viz., petitioner Mishrilal and one Constable Shrawan Singh, who has also been imposed with the same penalty. It is further submitted that the surrender by the said accused in itself is a proof that the petitioner had no role to play in his absconsion. It is further submitted that the petitioner alighted from the bus at the request of the accused, who complained of going to answer the nature call and by availing of the aforesaid window of opportunity, escaped from the spot. Thus, it is submitted that no mala fide can be attributed to the petitioner. 4. It is further submitted that the petitioner alighted from the bus at the request of the accused, who complained of going to answer the nature call and by availing of the aforesaid window of opportunity, escaped from the spot. Thus, it is submitted that no mala fide can be attributed to the petitioner. 4. Learned counsel for the petitioner has further submitted the petitioner's initial date of appointment is 1.1.1983 on the post of Constable and since then he has worked diligently for the Police Department and as the negligence on the part of the petitioner was not deliberate, he could not be awarded a major penalty of compulsory retirement. In support of his contention learned counsel for the petitioner has relied upon the decisions of the Hon'ble Supreme Court in the case of Union of India and others Vs. Naman Singh Shekhawat, reported in (2008) 4 SCC 1 as also in the case of Kakandhar Patel (dead) through LRs Vs. State of Madhya Pradesh and others, reported in 2005 (4) MPLJ 454 . 5. Learned counsel for the petitioner has further submitted that as per the Regulation 216 of the Madhya Pradesh Police Regulations, the petitioner could not have been imposed penalty of compulsory retirement, as the said penalty is not provided for in the Police Regulation. It is further submitted that there is clear violation of the Regulation 217 of the MP Police Regulations. In support of his contention learned counsel for the petitioner has relied upon the decisions of the Hon'ble Supreme Court in the case of Union of India and others Vs. Naman Singh Shekhawat, reported in (2008) 4 SCC 1 as also in the case of Kakandhar Patel (dead) through LRs Vs. State of Madhya Pradesh and others, reported in 2005 (4) MPLJ 454 . 6. Shri Piyush Jain, learned Panel Lawyer for the respondents/State has vehemently opposed the prayer of the petitioner and has submitted that no case for interference is made out, as not only the petitioner was negligent in performing of his duties but he was also responsible for reckless dereliction of duties, as he not only alighted from the bus within 10 kms. from the jail but also went to a Dhaba with the accused and his companion and also consumed the liquor along with the other policeman Shrawan Singh. from the jail but also went to a Dhaba with the accused and his companion and also consumed the liquor along with the other policeman Shrawan Singh. In his cross examination, in answer to question No. 30 put to him during the departmental enquiry he has admitted that although he does not know whether Shrawan Singh had consumed liquor or not, but from his mouth he could smell liquor. He has also admitted that the accused was handcuffed by Shrawan Singh only. 7. Learned counsel for the respondents/State has further submitted that non-compliance of the Madhya Pradesh Police Regulations has not been raised by the petitioner in his writ petition and this objection cannot be entertained at the time of hearing of the petition. In support of his contention, learned counsel for the State has also relied upon the decisions of the Hon'ble Supreme Court in the cases of BC Chaturvedi Vs. Union of India, reported in (1995) 6 SCC 749 , High Court Vs. Shashikant Patil, reported in (2000) 1 SCC 416 , State Bank Jaipur Vs. Nemchand Nalwaya, reported in (2011) 4 SCC 584 and in the case of Union of India Vs. P. Gunasekawan, reported in (2015) 2 SCC 610 . Thus, it is submitted that admittedly the petitioner was grossly negligent in performing his duties and as such no case for interference is made out. 8. Heard the learned counsel for the parties and perused the record, including the original record which has been requisitioned by the Court. 9. On perusal of the record, this Court is of the considered opinion that no case for interference is made out for the reasons that the petitioner has not been able to demonstrate that he exercised reasonable caution as is required in the normal course of transporting the accused persons from the jail to the trial Court and back. It is found that the petitioner allowed the accused person to be alighted from the bus when the jail itself was only 10 kms. away. It is found that the petitioner allowed the accused person to be alighted from the bus when the jail itself was only 10 kms. away. Otherwise also, according to the version of the petitioner, the accused was handcuffed, however, a perusal of the statement of the Dhaba owner clearly reveals that the accused was not handcuffed at the time when the petitioner and the accused entered into the Dhaba, who had not seen any handcuff on any of the persons accompanying the police, as admittedly along with the accused, three of his friends were also accompanying him. The departmental witness No. 6 Sanjay Lahoriya, a worker at Dhaba, had also not been cross examined by the petitioner in any manner and his statement when he said that the accused was not handcuffed has not been challenged by suggesting that he was actually handcuffed at the time when the incident took place. It is also found that the petitioner, in answer to a query raised during the course of departmental enquiry has admitted that the accused was handcuffed and other police personnel Shrawan Singh was holding the handcuff at the time when the incident took place. He has also stated that the said Shrawan Singh was in a state of inebriated at the time when he was holding handcuff. These peculiar facts of the case are sufficient enough to justify the major penalty of compulsory retirement of the petitioner. 10. So far as the judgments relied upon by the learned counsel for the petitioner are concerned, the same are totally distinguishable and are of no avail to the petitioner. In the case of Naman Singh Shekhawat (supra) the disciplinary proceedings initiated after nine years, detailed procedure for major penalty proceedings not followed, cross examining the respondent by the enquiry officer reflected his bias and denial of permission to examine the defence witness. In such circumstances the appeal of the Union of India was dismissed which was preferred against the order passed by the High Court in favour of the petitioner, whereas in the present case the circumstances are entirely different and as such no benefit can be given to the petitioner of the said judgment. In such circumstances the appeal of the Union of India was dismissed which was preferred against the order passed by the High Court in favour of the petitioner, whereas in the present case the circumstances are entirely different and as such no benefit can be given to the petitioner of the said judgment. In the case of Kakandhar Patel (supra) the Coordinate Bench of this Court has categorically held that although the said petitioner and three other police constables were carrying six accused persons to the Court and one of the accused escaped while passing busy locality of the bus stand, the petitioner cannot be held responsible for the simple reasons that other three police personnel were also present. Thus, it is apparent that in that case the benefit of other police personnel having not proceeded with the departmental enquiry was given to the petitioner and hence the penalty was considered as disproportionate. Again, in the present case, the facts and circumstances are entirely different and as such no benefit can be given to the petitioner. 11. So far as the contention regarding applicability of Police Regulations No. 216 and 217 is concerned, these Regulations read as under:- "216. Punishment of H.Cs. And Cs.- Head constable and constables may also be punished with:- (a) Confinement to quarters for a term not exceeding 15 days; (b) punishment drill; (c) extra guard duty. 217. Punishment of Constables.- Constable may also be punished with - (a) Deprivation or withholding of increment (for a period not exceeding one year at any one time). (b) Extra fatigue duty, which should be restricted to the following tasks:- (i) Tent pitching: (ii) Drain digging: (iii) Cutting grass, clearing jungle and cleaning parade ground: (iv) Repairing huts and huts and similar work in the lines: (v) Cleaning arms:" (emphasis supplied) 12. Apart from that, Regulation 214 provides for kind of punishments which inter alia also includes compulsory retirement. Regulation 215 provides that in addition to the punishment as provided under Regulation 214 which includes major penalty of compulsory retirement also, a person can also be imposed other penalties as well. A bare perusal of the Regulations 216 and 217 also reveals that they are merely enabling provisions, giving liberty to the disciplinary authority to impose various kind of punishments and cannot be read in isolation. Thus, the aforesaid contention is also not tenable and is hereby rejected. 13. A bare perusal of the Regulations 216 and 217 also reveals that they are merely enabling provisions, giving liberty to the disciplinary authority to impose various kind of punishments and cannot be read in isolation. Thus, the aforesaid contention is also not tenable and is hereby rejected. 13. The Supreme Court, in the case of Union of India v. P. Gunasekaran (supra) has held as under:- "20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Articles 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford Dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence, etc. In short, it depicts sterling character with firm adherence to a code of moral values. 21. The impugned conduct of the respondent working as Deputy Office Superintendent in a sensitive department of Central Excise, according to the disciplinary authority, reflected lack of integrity warranting discontinuance in service. That view has been endorsed by the Central Administrative Tribunal also. Thereafter, it is not open to the High Court to go into the proportionality of punishment or substitute the same with a lesser or different punishment. These aspects have been discussed at quite length by this Court in several decisions including B.C. Chaturvedi v. Union of India [ (1995) 6 SCC 749 : 1996 SCC (L & S) 80 : (1996) 32 ATC 44], Union of India v. G. Ganayutham [ (1997) 7 SCC 463 : 1997 SCC (L & S) 1806], Om Kumar v. Union of India [ (2001) 2 SCC 386 : 2001 SCC (L & S) 1039], Coimbatore District Central Coop. Bank v. Employees Assn. Bank v. Employees Assn. [ (2007) 4 SCC 669 : (2007) 2 SCC (L & S) 68], Coal India Ltd. v. Mukul Kumar Choudhuri [ (2009) 15 SCC 620 : (2010) 2 SCC (L & S) 499] and the recent one in Chennai Metropolitan Water Supply [Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 : (2014) 1 SCC (L & S) 38]. 22. .............................................................................................. 23................................................................................ 24. The Central Administrative Tribunal, in the order dated 1-2-2001 in OA No. 521 of 2000, after elaborately discussing the factual as well as the legal position, has come to the conclusion that the punishment of compulsory retirement is not outrageous or shocking to its conscience, it was not open to the High Court to interfere with the disciplinary proceedings from stage one and direct reinstatement of the respondent with back wages." (emphasis supplied) 14. In the case on hand, there are no such circumstances which may be considered as mild enough so as to form an opinion that the punishment of compulsory retirement/termination is shockingly disproportionate. 15. Resultantly, the petition fails and is hereby dismissed. No costs.