Dharmendra Singh Sikarwar vs State Of Madhya Pradesh & Ors

With the consent of parties, this petition is disposed of finally.

In this petition under Article 226 of Constitution of India, the petitioner has assailed the order dated 07/05/2012 (Annexure P/1), whereby, he has

been terminated from service. The petitioner has also assailed the order dated 03/06/2013 (Annexure P/2), whereby, Inspector General of Police,

Chambal Range, Gwalior has reversed the order dated 11/01/2013 passed in appeal by Deputy Inspector General of Police, Chambal Range, Gwalior

in suo moto revision in exercise of powers conferred vide clause 4 of M.P. Police Regulation 270.

The relevant facts, leading to controversy briefly are that, the father of the petitioner was working as constable driver and on account of pre-mature

death, the present petitioner was appointed as constable driver on compassionate ground and since then he was continued to work on the post. In the

year 2011, the petitioner was posted at police station kotwali, District Morena. The brother of the petitioner namely Ashok Singh Sikarwar @ Bunti

Sikarwar is disabled and handicapped having more than 90% disability and can walk with the help of crutch and for his livelihood he is having a Taxi

Car namely Innova bearing registration No. RJ14-UA 1207 and driver of the Taxi is employee namely Krishna Veer Singh Tomar @ Dhansu

Tomar and on 06/01/2011 the Taxi was hired for going to Ashoknagar and the driver took the vehicle to Ashoknagar and travelling party committed

the offence of kidnapping of two individuals of Kadera Caste from Ashoknagar and a criminal case No. 04/2011 for offence u/Ss. 364-A, 120-

B of IPC was registered at police station Nai Sarai, District Ashoknagar.

When the petitioner contacted the driver and took the location of the vehicle and on 08/01/2011, he came to know that the party hired the taxi had

committed the offence of kidnapping, therefore, he immediately informed the concerned police station about kidnapping and the police took steps to get

the kidnapees released. Despite releasing of the kidnapees, the petitioner was illegally involved in the said offence. Instead of appreciating the gesture

of the petitioner, the department conducted preliminary enquiry through SDOP, Bamore. The report of preliminary enquiry dated 20/07/2011 was

submitted and it was observed that the petitioner was in touch with the kidnappers. On the basis of preliminary enquiry report, joint charge sheet dated

02/08/2011 was issued to the petitioner and another co-accused. The departmental enquiry culminated into order dated 07/05/2012 (Annexure P/1),

whereby, the petitioner was terminated from service. Being aggrieved, the petitioner preferred an appeal to the DIG. The appeal was allowed vide

order dated 11/01/2013 (Annexure P/14) by setting aside the order dated 07/05/2012 with the direction to reinstate the petitioner in service. The said

order was taken up in suo moto revision by the reviewing authority and in exercise of the powers conferred vide clause 4 of M.P. Police Regulation

270, the reviewing authority issued notice to the petitioner dated 03/05/2013. The petitioner filed reply. The reviewing authority after considering

the reply, set aside the order dated 11/01/2013 (Annexure P/14)Â of reinstatement in service, but at the same time restored the order dated

07/05/2012 (Annexure P/1) passed by Superintendent of Police, Dist. Morena. A mercy petition was filed which was also rejected vide Annexure P/3

dated 01/10/2013. Aggrieved by inaction on the part of the respondents, the petitioner has filed the instant petition challenging the impugned orders on

various grounds, which are as follows :-

(1) The petitioner has been falsely implicated in the case inasmuch as on the basis of the information supplied by the petitioner, the kidnappees could

be released.

(2) The petitioner was not involved in the case directly or indirectly.

(3) The order passed in exercise of powers conferred vide clause 4 of M.P. Police Regulation 270 is bad in law since no opportunity of hearing was

afforded to the petitioner before passing the orders impugned.

On the other hand, learned Government Advocate by filing return submits that a preliminary enquiry was conducted by SDOP, Bamore and on

the basis of the report and looking to the fact that the petitioner was involved in the offence, punishment has rightly been imposed which does not

require interference by this Court. It is submitted that in the enquiry, it was found that the petitioner was in touch with the kidnappers and without the

help and connivance of the petitioner, the aforesaid crime could not have taken place. The involvement of the petitioner is proved on the basis of

deposition of the accused against the petitioner. It is further submitted that as many as six charges were framed against the petitioner and after holding

proper enquiry, the order of dismissal has been passed.

Heard learned counsel for the parties.

Clause 4 of M.P. Police Regulation 270 reads as under :-

“The revising authority may for reason to be recorded in writing exonerate or may remit, vary or enhance the punishment imposed or may order a

fresh enquiry of 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.â€​

The main question for consideration in this petition is that whether it is incumbent upon the reviewing authority to afford an opportunity of

personal hearing to the petitioner, after issuing show cause notice.

Evident it is from Clause 4 of Regulation 270 of MP Police Regulation that the revising authority may for reason to be recorded in writing exonerate

or may remit, vary or enhance the punishment imposed or may order a fresh enquiry of the taking of further evidence in the case. It is further

provided that the reviewing authority shall not vary or reverse any order unless notice has been served on the parties interested and opportunity given

to them for being heard.

Thus, it is clear that any order which is to be passed in suo motu review should be passed only after affording an opportunity and after giving

hearing. A similar question came up for consideration in the case of Fazal Bhai Dhala Vs. The Custodian-General, Evacuee Property, New Delhi and

another and The Custodian Evacuee Property, Madras AIR 1961 SC 1397, wherein it is held that :

“The proviso secures the requirements of the principles of natural justice when it says that any order prejudicial to any person shall not be passed

without giving such person a reasonable opportunity of being heard. No specific provision for service of notice in order that such a reasonable

opportunity of being heard be given has however been made by any rule. It goes without saying that in the large majority of cases, the Custodian ""will,

in order to give the party concerned a reasonable opportunity of being heard, first give him a notice of his intention to examine the records to satisfy

himself as to the legality or the propriety of any order passed by the subordinate officer and require such person to show cause if any why the order

should not be revised or modified, and then if and when the party appears before him in response to the notice, the Custodian has also to allow him,

either personally or through counsel, a reasonable opportunity of being heard. In suitable cases it may be proper and necessary for the Custodian to

allow the party concerned even to adduce evidence. There may be cases however where the party concerned is already before the Custodian, so that

all that is necessary for the Custodian to do is to inform such party of his intention to examine the records to satisfy himself whether a particular order

should be revised, and then to give him a reasonable opportunity of being heard. There would be no necessity in such a case to serve a formal notice

on the party who is already before the Custodian and the omission to serve the notice can be of no consequence. What the law requires is that the

person concerned should be given a reasonable opportunity of being heard before any order prejudicial to him is made in revision. If this reasonable

opportunity of being heard cannot be given without the service of the notice the omission to serve the notice would be fatal; where however proper

hearing can be given without service of notice, it does not matter at all, and all that has to be seen is whether even though no notice was given a

reasonable opportunity of being heard was given.â€​

Admittedly, in the case at hand, no opportunity ofpersonal hearing was afforded to the petitioner and the reviewing authority, after taking into

consideration only the reply to show cause notice passed the order, which when tested on the anvil of Clause 4 of MP Police Regulation 270 and the

decision in Fazal Bhai Dhala (Supra) cannot be given the stamp of approval.

In view of aforesaid, the impugned order dated 07/05/2012 (Annexure P/1) passed by Superintendent of Police, Morena and the order datedÂ

03/06/2013 (Annexure P/2)Â passed by the Inspector General of Police are hereby set aside. The respondents are directed to reinstate the petitioner

in service forthwith. However, the respondents shall be at liberty to proceed against the petitioner in accordance with law.

The petition, accordingly, stands allowed.