ZAHEER KHAN (dead) through L. Rs. SANJEEDA BEGUM W/o ZAHEER KHAN v. STATE OF MADHYA PRADESH
2022-09-07
VISHAL DHAGAT
body2022
DigiLaw.ai
ORDER : – Petitioner Zaheer Khan has filed this petition under Article 226 of Constitution of India, challenging imposition of penalty of compulsory retirement and orders passed by First and Second Appellate Authority dismissing his appeal. 2. During pendency of this petition legal heirs of Zaheer Khan are brought on record. 3. Learned counsel for the petitioners submitted that late Zaheer Khan was promoted on the post of Assistant Sub-Inspector (ASI) on 30-11-1987. While he was posted in Police Station Madiyado charge-sheet has been issued against him. As per charges, petitioner had intentionally written incorrect F.I.R. Complainant Maya Bai complained of rape against her on 3-12-2003. Petitioner wrote the F.I.R under sections 354 and 456 of IPC and he also changed the time of incident from 8.00 A.M to 11.00 A.M. By doing said act, petitioner has diluted the complaint of Maya Bai. Later on complainant approached SDO(P) and Superintendent of Police. 4. Preliminary enquiry was conducted and charge sheet was issued to petitioner. After detailed enquiry, report was submitted on 30-7-2004 and charge No. 1 was found partly proved and charge Nos. 2 and 3 were proved against him. Notice of enquiry report was served upon petitioner and petitioner also filed representation against said report. Dy. Inspector General of Police accepted the Inquiry Report and imposed penalty of compulsory retirement of petitioner vide order dated 25-9-2004. 5. Petitioner preferred first and second appeal before Inspector General of Police and Director General of Police which were dismissed vide orders dated 22-11-2004 and 14-3-2005. During pendency of appeal, Sessions Trial was concluded and petitioner was acquitted in Sessions Trial No. 112/2004 by judgment dated 20-1-2005. 6. Learned counsel for the petitioner submitted that Disciplinary Authority committed an error of law in considering the previous record of petitioner and imposing penalty of Compulsory Retirement. Petitioner was not put to notice that his previous record shall be considered otherwise petitioner may have represented regarding his conduct and considering the previous record without notice amounts to violation of principles of natural justice. Learned counsel for the petitioner further submitted that Dy. Inspector General of Police does not have jurisdiction to impose penalty upon petitioner. It is further submitted that findings in inquiry report is perverse and charge No. 1 has not been proved, therefore, charge Nos. 2 and 3 could not be held to be proved against him.
Learned counsel for the petitioner further submitted that Dy. Inspector General of Police does not have jurisdiction to impose penalty upon petitioner. It is further submitted that findings in inquiry report is perverse and charge No. 1 has not been proved, therefore, charge Nos. 2 and 3 could not be held to be proved against him. In these circumstances, learned counsel for the petitioners made a prayer for quashing of order passed by Appellate Authorities and restore all the benefits to petitioner. 7. Learned Govt. Advocate appearing for the respondents submitted that petitioner was granted opportunity of hearing. List of witnesses and documents were supplied to him and he was also given opportunity to cross-examine the witnesses. After considering the entire material on record, Inquiry Officer found charge No. 1 partly proved and charge Nos. 2 and 3 as proved. Disciplinary Authority/D.I.G has accepted the enquiry report and directed compulsory retirement of petitioner. Departmental enquiry has been conducted according to the procedure prescribed and there is no illegality or irregularity in departmental enquiry. 8. Learned Govt. Advocate relied on judgment of Apex Court in Civil Appeal No. 8071/2014 (State of Karnataka and another vs. N. Gangaraj, 2020(4) M.P.L.J. (S.C.) 461). Relying on said judgment it is submitted that once Disciplinary Authority has accepted the enquiry report then Court will not exercise its power of judicial review to interfere with findings of fact by re-appreciating the evidence. In view of same, writ petition filed by petitioner is dismissed. 9. Heard the learned counsel for the parties. 10. Charge Nos. 1 to 3 are interconnected. It cannot be said that if charge no.1 is partially proved then charge Nos. 2 and 3 could not be said to be proved. Charge Nos. 1 to 3 are as under : – 11. Considered the aforesaid charges. It is found that charge Nos. 1 to 3 are interconnected and Inquiry Officer as well as Disciplinary Authority had found that petitioner had not written F.I.R of Maya Bai as reported by her and petitioner had diluted the said report by interpolation. Petitioner has been given appropriate opportunity of hearing and to adduce defence evidence. In view of same, contention of petitioner is negatived that if charge No. 1 is partly proved then charge Nos. 2 and 3 could not be held to be proved. 12.
Petitioner has been given appropriate opportunity of hearing and to adduce defence evidence. In view of same, contention of petitioner is negatived that if charge No. 1 is partly proved then charge Nos. 2 and 3 could not be held to be proved. 12. Petitioner raised ground that D.I.G is not competent authority to impose punishment of compulsory retirement. 13. Petitioner had made amendment in the writ petition and introduced the said ground as ground “K” in the writ petition. It is submitted that Inspector General is the appointing authority. Respondents had not controverted said amendment by filing any additional reply. 14. Relevant provisions of Regulations 214 and 222 of M.P. Police Regulations, are quoted as under : – “214. Punishment - Kinds of. Without prejudice to the provisions of any law or any special orders for the time being in force, the following penalties may, for good and sufficient reasons, be imposed upon any member holding a post in a Subordinate Police Service : – (I) to (vii) xxx xxx xxx (viii) Compulsory retirement. 222. Power of D.I.G : – Power to inflict on Head Constables, Constables, Assistant Sub-Inspector, Sub-Inspector and officers of equivalent ranks any of the punishments specified in Regulations 214 and 215.” 15. Petitioner has been imposed penalty under Regulation 214(viii) of Police Regulations. As per Regulation 222(c) Dy. Inspector General has power to inflict any punishment mentioned in Regulations 214 and 215 on Assistant Sub Inspector and Sub Inspector. 16. Regulation 222 gives power to D.I.G to impose penalty of compulsory retirement on A.S.I. Petitioner has not pleaded in writ petition about any Regulation or Rules to show that D.I.G has no power to impose the penalty. Only a bald averment has been made in grounds that Inspector General is competent to impose the penalty. There is difference in pleadings in Civil Suit and Writ Petition. In Civil Suit only facts are to be pleaded and not law or evidence. In Writ Petition laws are also required to be pleaded and annexed to support the contentions of the parties. “High Court exercising its jurisdiction under Articles 226 and 227 of Constitution of India, tests judicial and quasi-judicial orders of Courts, Tribunal and Executive Authorities whether same are in accordance with law or it suffers from legal flaws. Without pleading laws it will not be possible to point out illegality in order.
“High Court exercising its jurisdiction under Articles 226 and 227 of Constitution of India, tests judicial and quasi-judicial orders of Courts, Tribunal and Executive Authorities whether same are in accordance with law or it suffers from legal flaws. Without pleading laws it will not be possible to point out illegality in order. In view of this, parties must plead law as compulsory requirement in Writ Petitions and Court is not obliged to search laws and pass orders in absence of pleadings.” Petitioner has failed to plead any law to buttress the submission that only Inspector General is competent to impose the penalty. 17. In view of aforesaid facts and circumstances, there is no force in the argument that only Inspector General can impose penalty of compulsory retirement to A.S.I. 18. Petitioner has also raised a ground that D.I.G could not have taken past punishment imposed upon petitioner into consideration for imposing penalty. 19. D.I.G has taken into consideration past penalties of petitioner to assess penalty to be imposed on petitioner. Punishment which has been taken into consideration is only to assess the nature of punishment, its severity which can be imposed upon petitioner. Past penalties were considered to weigh proportionality of penalty, therefore, it cannot be said that it will violate the rights of natural justice. 20. Learned counsel for the petitioner also argued that no notice of proposed penalty has been given to him. 21. Petitioner, as stated above, has not argued that under what Regulations and Rules Disciplinary Authority is required to give notice to petitioner regarding proposed penalty on him. In absence of pleadings and arguments of Regulations and Rules under which petitioner is claiming right of notice for proposed penalty, same cannot be presumed or assigned by Court. 22. Considering the totality of facts and circumstances of the case, writ petition filed by the petitioner is dismissed.