Laxmi Narayan Pandey vs State of Madhya Pradesh and Others

Manindra Mohan Shrivastava, J.—Heard. This order shall dispose off the above three writ petitions which arise out of common grounds of law based on similar facts. Brief resumption of necessary and relevant facts for decision of this petitions are that the petitioners at the relevant time were posted and working as Head Constable and Constable in the Rakshit Kendra Raipur. Along with them, there were other Constables, Head Constable who were in charge and entrusted with duty. It is alleged that one accused absconded from the custody of the police and according to respondents, those petitioners and other police officer who were on duty, were responsible for this serious lapse and negligence of duty.

Vide order dated 10.6.1992, Superintendent of Police, Raipur, instituted common disciplinary proceedings against petitioners Lakshmi Narayan Pandey, Ramendra Mishra and Akshay Kumar along with some more police officials. The inquiry culminated in imposition of penalty of dismissal from service vide order dated 23.3.1993 (Annexure-A-12). Each of he petitioners in the aforesaid writ petitions were inflicted with the extreme major penalty of dismissal from service.

Aggrieved by the order of dismissal, the petitioners herein preferred appeal before the Appellate Authority, though un-successfully. The appeals were dismissed. Thereafter, the petitioners have approached this Court assailing the correctness and validity of the inquiry, the order passed by the disciplinary authority as also the order of dismissal of appeal.

Learned counsel for the petitioners contended that the entire departmental enquiry initiated with issuance of charge-sheet is vitiated on account of blatant violation of mandatory provision contained in Rule 18 of the M.P./ C.G. Civil Services (Classification, Control and Appeal) Rules, 1966 (for short "the Rules of 1966"). He elaborated his submission and contended that the Superintendent of Police without any authority and without there being any order of common proceedings passed in terms of Rule 18 of the Rules of 1966, not only issued charge-sheet, but also proceeded with departmental enquiry. According to him, the joint enquiry in a common proceeding was not permissible for want of a valid order by an authority who was competent to impose the penalty of dismissal from service on all the petitioners. He further elaborated by urging that the petitioner-Laxmi Narayan Pandey was posted and working as Head Constable. He was promoted as Head Constable vide order of Annexure-A-2 {W.P. (S) No. 875/05} passed by the Dy. Inspector General of Police (DIG), Raipur. Therefore, the DIG, Raipur was competent to impose the penalty of dismissal and not the Superintendent of Police, Raipur. He submits that even if the Superintendent of Police was competent to impose penalty of dismissal on the other two petitioners namely-Ramendra Mishra and Akshay Kumar David, being constable, he had no competency to impose penalty of dismissal on petitioner-Laxmi Narayan Pandey. Therefore, the order could be passed by the DIG or any other authority to whom DIG was sub-ordinate. Learned counsel for the (sic) submits that violation of the aforesaid provision has vitiated the inquiry. In support of his submissions, reliance has been placed on the judgment of this Court in the case of Ghasiram Kosariya Vs. State of M.P. and Others,

The impugned order of imposition of penalty has been assailed on other grounds also. Learned counsel for the petitioners submits that though the petitioners were subjected to disciplinary action, parallel, a criminal case was also instituted against them. Eventually, the criminal case resulted in their acquittal vide judgment dated 26.6.2004 passed by the Court of competent jurisdiction, in which, each of the petitioners has been acquitted. According to him, the acquittal of the petitioners from a criminal case after a full-fledged trial, upon examination of same set of witnesses, renders the order of penalty in the disciplinary enquiry liable to be reviewed and recalled and petitioners reinstated in service. It is also contended that the departmental enquiry is vitiated on account of acute bias on the part of inquiry officer. There was no presenting officer appointed by the employer and the inquiry officer usurped the role of presenting officer. He examined the witnesses, put them leading questions and virtually acted like presenting officer i.e. prosecutor. This conduct of the inquiry officer disqualified him to act as an impartial authority as he become judge of his own cause. Learned counsel further submitted that the petitioners were not afforded due and proper opportunity to submit their reply/comments on the inquiry report submitted by the inquiry officer. A short period of seven days was granted in the show-cause notice, upon which, prayer was made for more time so that a proper representation, controverting each and every finding of the inquiry officer, be submitted with the assistance of an expert. However, the prayer was not paid any heed to by the disciplinary, authority and mechanically, accepting the inquiry report, denying the petitioners opportunity to file re-ply against findings of the Inquiry Officer, impugned order of penalty was imposed. Therefore the order of penalty is liable to be set aside on the ground of violation of principles of natural justice. Last submission of learned counsel for the petitioners is that the appellate authority did not apply its mind to the grounds raised by the petitioners in their respective appeals. The appellate authority has passed a totally non-speaking order which contains nothing. Therefore, in view of the judgment of this Court in the case of Soniram Dhruv v. State of Madhya Pradesh and Ors., WP (S) No. 1367/05 decided on 5.2.2010, the order passed by the appellate authority is liable to be set aside.

Per contra, learned counsel for the State contended that the appellate authority merely affirmed the order of penalty passed by the disciplinary authority. Therefore, in such a situation where the appellate authority affirms the view of the disciplinary authority, he is not required to record separate reasons. According to him, the order reflects application of mind, because it states that the entire records of inquiry, grounds were taken into consideration. As far as alleged violation of Rule 18 of the Rules of 1966 is concerned, learned counsel for the respondents submits that the Superintendent of Police has been designated as a competent disciplinary authority under the schedule appended to the Rules of 1966. He has been designated as competent disciplinary authority to impose all punishment not only on the Constable, but also on the Head Constable. Therefore, notwithstanding the fact that the one petitioner was appointed by the DIG, in view of the provisions contained in the statutory rules, the Superintendent of Police was competent to initiate joint inquiry against all the petitioners without there being any order of common inquiry by the DIG or any other higher authority. Learned counsel for the State further submitted that the disciplinary authority has passed the order of penalty after due consideration of the inquiry report and the evidence led by the prosecution, documentary and oral, and alter full consideration of defence of the petitioners. He further submits that as far as the alleged violation of non-grant of proper opportunity is concerned, in the absence of any prejudice demonstrated before the Court, it does not by itself, vitiates the order of penalty. He further submits that the degree of proof required in a departmental enquiry are different than those required to convict a person for commission of offence in a criminal trial. While the degree of proof in departmental enquiry is that of preponderance of probabilities, in criminal matters, it is beyond reasonable doubt. Therefore, merely because the petitioners have been acquitted of the criminal charges, the order passed by the disciplinary authority does not call for any interference. It is submitted that even if presenting officer has not been appointed, in the absence of any prejudice demonstrated before the Court, the petitioners are not entitled to any relief. He also submitted that the averments regarding inquiry officer assuming the role of presenting officer are vague, without specific details. He further submitted that the petitioners were granted full opportunity not only to cross-examine prosecution witnesses, but to lead his own defence. Therefore, the conduct of the inquiry officer does not lead to conclusion that he had any bias against the petitioners.

Though the order of penalty, in each of the petitions, has been assailed on number of grounds, which I have referred to hereinabove, I shall first take up the ground with regard to violation of mandatory provision contained in Rule 18 of the Rules of 1966.

It is not in dispute that the writ petitioner-Laxmi Narayan Pandey (W.P. (S) No. 875/ 05) was initially appointed as constable and later on, he was promoted as Head Constable vide order dated 19.11.1991 passed by the Dy. Inspector of Police, Raipur, Range Raipur. Writ petitioner-Laxmi Narayan Pandey has made specific pleadings to this effect in para-2 of his petition and order of promotion has also been placed on record as Annexure-A-2. This fact has not been substantially disputed by the respondents. Therefore, it cannot be disputed that petitioner-Laxmi Narayan Pandey was appointed by way of promotion on the post of Head Constable by an order of the DIG. As far as other two petitioners are concerned, both of them were appointed by the Superintendent of Police.

In the case of Ghasiram Kosariya (supra), this Court examined the applicability of the Rules of 1966 in the matter of disciplinary enquiry against the constable of police department, after examining the statutory scheme of the provisions contained in the Police Regulations. It was held thus:

...So far as applicability of Rule 18 of the Rules of 1966 is concerned, this Court in the case of Soniram Dhruv v. State of Madhya Pradesh and others (W.P. (S) No 1367 of 2005, decided on 5-2-2010) relied upon the judgment of High Court of Madhya Pradesh in the matter of Krishnanarayan Shivpyare Dixit Vs. State of M.P. and others, and taking into consideration the provisions contained in Regulation 213 of the Police Regulations, held:--

Clause 213 of the Chhattisgarh Police Regulations provides that the provisions contained in C.G. Civil Services (Classification, Control and Appeal) Rules, 1966 shall regulate penalty and appeal in respect of police officers. It has been held by the High Court of Madhya Pradesh in the matter of Krishnanarayan Shivpyare Dixit Vs. State of M.P. and others, that regulations 213 does not exclude the operation of M.P. Civil Service (Classification, Control and Appeal) Rules, 1966. As no specific provisions had been made in Police Regulations to prescribe the manner in which the appeal against the order of punishment shall be decided by the Appellate Authority, the provisions contained in C.G. Civil Services (Classification, Control and Appeal) Rules, 1966 prescribing mode and manner of exercise of appellate power by the Appellate Authority are applicable.

Applying the aforesaid principles, as there is no specific provision dealing with the aspect relating to common proceedings, the provisions contained in Rule 18 of the Rules of 1966 relating to common proceedings in case of more than one delinquent employee would also apply with equal force in the case of departmental enquiry in respect of officials of the Police Department. Therefore, while holding departmental enquiry, respondents were obliged under the law not only to hold enquiry in accordance with the provisions contained in Police Regulations but also in compliance of the provisions of Rules of 1966, wherever applicable.

Rule 18 of the Rules of 1966 reads thus:

Common Proceedings.-- (1) Where two or more Government servants are concerned in any case, the Governor or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding.

(2) ****

Consequences of violation of provisions contained in Rule 18 of the Rules of 1966, in holding common proceeding have been considered in plethora of decisions and it is no longer res integra. In the case of Mahesh Kumar Shrikishan Tiwari v. State of Madhya Pradesh and others, 1985 MPLJ 516, the issue with regard to requirement of passing specific order, order as required under Rule 18 and its consequences came up for consideration. That was also a case relating to an official of the Police Department. While holding that the applicability of the Rules of 1966 is not altogether excluded, relying upon the judgment in the case of Premchandra Dhalpuria, Ex-Sub-Inspector, Police Vs. The State, , it was held that where the Police Regulations are silent; the provisions of the Rules of 1966 would apply in departmental enquiries against sub-ordinate Police Staff. Relying upon the judgments in several cases on the point, it was held thus:--

There is no express provision in the Police Regulations for common proceedings against delinquent servants. Rule 18 of the Control and Appeal Rules is in these terms:--

Where two or more Government servants are concerned in any case, the Governor or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding.

There is no such order by the Deputy Inspector General who is the competent authority. In the decision in Ashok Y. Naik v. The Administrator, Goa, 1979 Ser LJ 84, it has been held that where there is no order by the competent authority for common proceedings, the entire proceeding is vitiated being without jurisdiction irrespective of the question of proof of prejudice which must be implied. The decision in Tripura Charan Chatterjee Vs. State of West Bengal and Others, , is also pertinent. As it is clear that rule 18 of the Control and Appeal Rules has been violated, the Departmental Enquiry is vitiated.

From the foregoing discussion, it is clear that in the instant case the impugned order is not only in utter disregard of the principles of natural justice but is also violative of Rule 18 of the Control and Appeal Rules.

The aforesaid view was reiterated in the case of Shyamkant Tiwari Vs. State of Madhya Pradesh and Others, and it was held:--

In the decision in Ashok Y. Naik v. The Administrator Goa, it has been held that where there is no order by the competent Authority for common proceedings, the entire proceeding is vitiated being without jurisdiction irrespective of the question of proof of prejudice which must be implied. The decisions in Tripura Charan v. State of West Bengal and Mool Chand''s case are also pertinent. As it is clear that Rule 18 of the Control and Appeal Rules has been violated the Departmental Enquiry is vitiated.

In the case of Sardar Badeo Singh Nageena Singh Vs. State of Madhya Pradesh and others, also, it was categorically held that violation of Rule 18 would vitiate the proceedings rendering the order for punishment as null and void.

Relying upon the aforesaid decisions, in the case of S.N. Singh Vs. State of M.P. and others, it was held that as no prior sanction of the Governor or of the competent authority who can impose penalty of dismissal from service was ever obtained, the common proceedings cannot be said to be validly held.

The submissions of learned counsel for the State that the Superintendent of Police being a competent authority to impose penalty on Constable as well as Head Constable, issuance of charge-sheet by him instituting common proceedings would substantially fulfill the requirement of an order of common proceedings under Rule 18 of the Rules of 1966, cannot be accepted. As has been held herein-above, undeniably, petitioner-Laxmi Narayan Pandey was promoted to the post of Head Constable by the order of DIG What Rule 18 requires is that where two or more Govt. servants are concerned in any case, the Governor or any other authority competent to impose the penalty of dismissal from service on all such Govt. servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding.

Therefore, the order was required to be passed by authority competent to impose penalty of dismissal on all such Govt. servants. It has therefore to be examined as to whether under the law, the Superintendent of Police was competent to impose the penalty of dismissal from service on petitioner-Laxmi Narayan Pandey, a Head Constable. Laxmi Narayan Pandey was appointed by way of promotion by the order of DIG, who is higher in rank than the Superintendent of Police. The constitutional protection guaranteed under Article 311(1) of the Constitution of India is as follows.

311 (1) No person who is a member of a civil service of the Union or an 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

Therefore, it is clear that the protection is that a Govt. servant shall not be dismissed or removed by an authority sub-ordinate to that by which he was appointed. Therefore, the insistence is not on the authority who is competent to impose the penalty of dismissal or removal or reduction of the rank, but the authority who actually appointed, (please see Dharam Dev Mehta Vs. Union of India (UOI) and Others, The state of U.P. and Others Vs. Ram Naresh Lal, and Sampuran Singh Vs. State of Punjab, Therefore, even if it were to be assumed that perforce the provision contained in the schedule appended to the Rule of 1966, the Superintendent of Police has been designated as an authority competent to impose the penalty of dismissal or removal, the constitutional protection guaranteed to petitioner-Laxmi Narayan Pandey would require that in case a penalty of dismissal or removal is proposed, it is to be imposed only by DIG or by any other higher authority. (please see N. Somasundaram Vs. State of Madras, Gurmukh Singh Vs. Union of India (UOI), and Balakdas v. Asstt. Security Officer, AIR 1960 AP 183). The Superintendent of Police is an authority sub-ordinate to the Dy. Inspector General of Police under the statutory scheme of Police Regulations.

As an upshot of above discussions, I am of the considered view that the petitioner-Laxmi Narayan Pandey could not be dismissed, removed or reduced in rank except by the order of DIG. Therefore, the competent authority to pass an order of common proceedings under Rule 18 of the Rules of 1966 was the DIG and not the Superintendent of Police.

Otherwise also, the respondents have failed to place on record any order of common proceedings passed by any other authority as contemplated under Rules 18 of the Rules of 1966.

The result is that the entire inquiry is vitiated and consequently, order of punishment as also the order passed in appeal are liable to be set aside. Accordingly, the order of penalty dated 23.3.1993 passed by the Superintendent of Police as also order dated 20.8.1993 passed in appeal in respect of each of the petitioners herein are hereby set aside.

Normally this Court would have remanded the matter to the concerned authority for holding fresh enquiry in accordance with the provisions of the Rules. However, in view of the submission made by learned counsel for the petitioners that at this distance of time, it would be a great hardship to subject the petitioner to denovo enquiry, it is required to be considered as to what orders should be passed in the facts and circumstances of the present case and in the interest of justice. In the case of G. Vallikumari Vs. Andhra Education Society and Others, , a similar situation cropped-up for consideration before the Supreme Court and peculiar circumstances were dealt with taking into consideration long lapse of time and it was held:--

Since the order of punishment passed by the Chairman of the Managing Committee is vitiated due to violation of the statutory rules and the principles of natural justice, we may have remitted the matter to the Tribunal with a direction to consider whether or not the penalty of removal from service imposed upon the appellant was disproportionate to the misconduct found against her or the action taken by the management was wholly arbitrary or unjust but keeping in view the fact that the appellant was removed from service more than 13 years ago, we do not consider it proper to adopt that course.

In Superintendent (Tech. I) Central Excise, I.D.D. Jabalpur and Others Vs. Pratap Rai, this Court held that if an order passed by the disciplinary authority is annulled on a technical ground, the authority concerned is free to pass fresh order but, at the same time, the Court declined to give such liberty to the administration on the ground that a period of 15 years had elapsed since the framing of charge.

In Shri Bhagwan Lal Arya Vs. Commissioner of Police Delhi and Others, a somewhat similar approach was adopted by this Court by recording the following observations: (SCC p.566, para 14) (P. 2135, Para 14 of AIR).

Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily, we would have set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the period during which the appellant remained absent from duty and the period calculated up to the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spent on duty. The appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report on duty within a period of six weeks from today to take benefit of this judgment.

(Emphasis supplied)

Almost similar circumstances exist in the present case also. The departmental enquiry was initiated against the petitioners vide charge-sheet which was issued in the year 1992, in which, penalty was imposed in the year 1993. The petitioners took up the matter in appeal and finally the petition was filed be-fore the Madhya Pradesh State Administrative Tribunal in the year 1994. Thus, almost 20 years have elapsed since the date of initiation of enquiry. Therefore, in the considered opinion of this Court, it would not be proper at this stage to remand the matter, for de novo enquiry. Taking into consideration the nature of accusation against the petitioners and all relevant circumstances, in the opinion of this Court, interest of justice would be met, if the matter is finally set at rest without any further enquiry and petitioners are directed to be reinstated in service. However, the petitioners will not be entitled to arrears of pay or any other monetary benefits which they would have earned during the period they were out of employment.

In view of the aforesaid conclusion, I need not go into other grounds raised by the petitioners in their respective petitions. The petition is accordingly allowed. There shall be no order as to cost.