Rahul Tiwari S/o Shri Surendra Tiwari v. State of Chhattisgarh
2023-04-26
RAKESH MOHAN PANDEY
body2023
DigiLaw.ai
ORDER : 1. Petitioner has filed this petition against the order dated 25.10.2019 passed by the respondent No. 2 whereby the authority has set aside the order of punishment of censure imposed upon the petitioner by respondent No. 4 in the month of April 2017 and remitted back the matter to the S.P. Bilaspur to initiate departmental enquiry. 2. Facts of the present case are that the petitioner was posted as Inspector in the Police Department and at the relevant time i.e. in the year 2016 he was posted at Police Station-Sirgitti, Bilaspur. On the basis of written complaint, charge-sheet was issued against the petitioner and a departmental enquiry was initiated against him. The departmental enquiry culminated into the order of warning which was entered in the service book and such order was passed in the month of April 2017. After lapse of more than 2½ years, the order passed by respondent No. 4 was suo motu reviewed by respondent No. 3 by exercising the powers conferred under Regulation 270 of the Chhattisgarh Police Regulations (hereinafter called as “CGPR”) and vide order dated 25.10.2019, the respondent no. 3 set aside the punishment of warning inflicted against the petitioner and remitted back the matter to the Superintendent of Police for enquiry. 3. Counsel for the petitioner would submit that though there is no limitation provided under Regulation 270 of the “CGPR” to review the order passed by the disciplinary authority. He would further submit that where there is no limitation, power should be exercised within a reasonable period. He would also submit that without affording any opportunity of hearing and without issuance of notice the respondent No. 3 has passed the impugned order. He has placed reliance upon the judgment of the M.P. High Court in the matter of Angad Singh Rathore vs. State of M.P. and Others, 2009 SCC Online M.P. 379 : (2010) 1 MPLJ 171 where similar issues were involved and same regulations were being dealt with by the High Court. 4. On the other hand, counsel for the State would submit that proper opportunity of hearing was afforded to the petitioner and the notice was issued on 11.04.2019.
4. On the other hand, counsel for the State would submit that proper opportunity of hearing was afforded to the petitioner and the notice was issued on 11.04.2019. She would further submit that looking to the proportionality of the punishment imposed upon the petitioner the respondent No. 3 took cognizance and reviewed the order, therefore, there is no illegality in the decision taken by the respondent No. 3. She would also submit that looking to the grievousness of the conduct imputed against the petitioner, the delay caused in taking cognizance by respondent No. 3 can be ignored. She would submit that the petition preferred by the petitioner deserves to be dismissed. 5. I have heard counsel for the parties and perused the documents. 6. It is not in dispute that the petitioner was imposed with punishment of censure in the month of April 2017 by the Superintendent of Police, Bilaspur. It is also not disputed that for more than 2½ years, no proceedings were initiated in this regard and surprisingly on 25.10.2019 the respondent No. 3 reviewed the decision arrived at by the Superintendent of Police, Bilaspur by setting aside the order and remitting back the matter to the authority to initiate departmental enquiry against the petitioner. The order has been passed by the respondent No. 3 after more than 2½ years. In the matter of Angad Singh Rathore (supra) wherein the High Court of M.P. has held that Regulation 270 provides for suo motu revision which reads as under: 270.....(1) Every order of punishment of 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 purposes 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, as nearly as may be, apply to an application for revision.
Explanation: For the purposes 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, as nearly as may be, apply to an application for revision. (4) The revising authority may for reasons to be recorded in writing exonerate or may remit, vary or enhance the punishment imposed or may order a fresh enquiry or 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 and opportunity given to them for being heard. 7. Chapter VIII of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 deals with review. The High Court of M.P. in Angad Singh Rathore (supra) has further observed in Para 8-10 as under: “8. Regulation 262 of the Regulations reads thus: “Every Officer against whom an order may be passed under Regulation 214 and who thinks himself wronged thereby shall be entitled to prefer an appeal against such order to the authority immediately superior to the officer who passed the order of punishment; and [if the appeal if from an officer of the rank of Inspector or of an equivalent rank] and the appeal relates to an order than that referred to in sub-head (1) of Regulation 214 and is rejected by the appellate authority, he may prefer a second appeal to the State Government. Provided that a probationer shall have no right of appeal against the orders of his discharge if he has been given an opportunity to show cause against the discharge and his reply duly considered as required by the rule contained in Police Regulation 228-A.” “29. (1) Notwithstanding anything contained in these rules except Rule 11: (i) the Governor. (ii) the head of a department directly under the State Government, in the case of a Government servant serving in a department or office (not being the secretariat), under the control of such head of a department. (iii) the appellate authority, within six months of the date of order proposed to be reviewed.
(ii) the head of a department directly under the State Government, in the case of a Government servant serving in a department or office (not being the secretariat), under the control of such head of a department. (iii) the appellate authority, within six months of the date of order proposed to be reviewed. (iv) any other authority specified in this behalf by the Governor by a general or special order, and within such time as may be prescribed in such general or special order which may at any time, either on his or its own motion or otherwise call for the records of any inquiry and review any order made under these rules or under the rules repealed by Rule 34 from which an appeal is allowed but from which no appeal has been preferred or from, which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may: (a) confirm, modify or set aside and order. (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or imposed any penalty where no penalty has been imposed. (c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case. (d) pass such other orders as it may deem fit: Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose, any of penalties specified in clauses (v) to (ix) of Rule 10 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses, no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 14 [XXX] and except after consultation with the Commission where such consultation is necessary: Provided further that no power to review shall be exercised by the head of department unless: (i) the authority which made the order in appeal. (ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.
(ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him. Explanation: (1) The powers conferred on the Governor under this sub-rule shall in the case of Class III or Class IV Government servant serving in a District Court or a Court subordinate thereto be exercised by the Chief Justice. (2) No proceeding for review shall be commenced until after: (i) the expiry of the period of limitation for an appeal. (ii) the disposal of the appeal where any such appeal has been preferred. (3) An application for review shall be dealt with in the same manner as if it were an appeal under these rules. Explanation II: The powers conferred on the Governor under this rule shall, in the case of Judicial Officers be exercised by the High Court. 9. It is not disputed that in view of Regulation 262 of the Regulations against the penalty order dated 15.05.2006 passed by the third respondent Inspector General of Police, Ujjain the appellate authority would be the second respondent Director General of Police. Regulation 270 empowers any authority superior to the authority making the order of penalty to review the order suo motu. This being the position and the Director General of Police being the superior authority as well as appellate authority against the order of penalty sought to be reviewed the provisions contained in Rule 29 Sub-Clause (iii) of the Rules would get attracted. Rule 29 (iii) provides that the appellate authority may review the order proposed to be reviewed within six months. In the present case the second respondent appellalte authority sought to review the order after more than eight months. In the circumstances the action to take the order of penalty in review having been taken after six months is barred by limitation. 10. The contention of learned Government Advocate that the second respondent being the Head of the Department no period of limitation is provided for taking the matter in suo motu revision is misconceived. Police Regulation 270 provides that the review shall be made by any authority superior to the authority making order. In view of Regulation 262 the appellate authority against the order of penalty passed by the Inspector General of Police, Ujjain is Director General of Police being the authority superior to the authority making the order.
Police Regulation 270 provides that the review shall be made by any authority superior to the authority making order. In view of Regulation 262 the appellate authority against the order of penalty passed by the Inspector General of Police, Ujjain is Director General of Police being the authority superior to the authority making the order. In the circumstances proposed action of review by the Director General of Police is in the capacity of the appellate authority and therefore the suo motu powers could not have been exercised by him after the prescribed period of limitation of six months in view of Rule 29 (iii) of the Rules, 1966.” 8. Having regard to the aforesaid facts and further considering the judgment passed by the High Court of M.P. in my considered opinion the order passed by the respondent No. 3 dated 25.10.2019 is not sustainable in the eyes of law. Consequently, the order is liable to be and is hereby set aside with consequences to follow. No costs.