Naresh Singh Jadon vs State of M.P. and others

Challenge is to an order dated 05.12.2014 whereby petitioner has been inflicted the penalty of removal from service and order dated

22.04.2015 whereby an appeal preferred against the dismissal has been affirmed.

Petitioner, a Constable in District Executive Force, on 08/05/2014, was assigned the duty of custody of an accused Pradeep Rathore along with

two other constables, viz. Kanti Raj and Wasim Akhtar under the Guard Commander Head Constable Rajendra Singh Kushwaha. On said day

the accused was taken to J.A. Hospital at 09 am from Central Jail, Gwalior. The accused underwent surgery on 09/05/2014 and was shifted to

general ward. On 13.05.2014, the said accused during the period 03 am to 06 am fled away from general ward. Charge-sheet was issued to the

petitioner along with other three personnel on 05.06.2014. On denial of charges, regular departmental enquiry was held by appointing Presenting

Officer and the inquiry officer. Joint enquiry was held.

The enquiry officer found the petitioner guilty of the charges. He found that the petitioner was assigned the duty during the period from 03 am to

06 am and due to his negligence of not informing other constable while going to answer the nature''s call led the accused fled away. The enquiry

officer exonerated other delinquents.

The disciplinary authority dissenting with the findings by the enquiry officer in respect of other three personnel inflicted the penalty of dismissal

form service on the petitioner and the Head Constable Rajendra Singh, whereas two constables were visited with the penalty of stoppage of one

increment with cumulative effect. The Appellate Authority modified the punishment of Rajendra Singh from dismissal to compulsory retirement, but

upheld the dismissal of petitioner.

The order is challenged on two grounds, firstly, that, before initiation of proceedings under Rule 18 of the Madhya Pradesh Civil Services

(Classification, Control and Appeal), Rules 1966 the orders were not sought from the Governor nor the Competent Authority. Rule 18 of 1966

Rules envisages that when 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 such government servants may make an order directing that the disciplinary action against all of them may

be taken against such officers.

In the case at hand, evidently, under M.P. Police Regulations, Senior Superintendent of Police is the Competent Authority to impose penalty of

dismissal in relation to Head Constables and Constables. He was, thus, competent to direct for joint enquiry. The decision in ""Jagdish Rathi Vs.

State of M.P. and others [2009(II) MPWN 98]"" is of no assistance as it turns on its own facts wherein the delinquents were found to be appointed

by the State Government and the Governor was the authority competent to impose penalty of dismissal.

In view whereof, the first contention that the joint enquiry under Rule 18 of 1966 Rules was vitiated fails and is negatived.

The next contention is that the enquiry was vitiated because the enquiry officer had put question to the petitioner, thus the enquiry officer acted

as the prosecutor.

The deposition sheet brought on record reveals that the question of general nature was asked by the enquiry officer. In ""State Of Uttaranchal

and others Vs. Kharak Singh [(2008) 8 SCC 236]"", it has been held by the Hon''ble Supreme Court:

15(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an

opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead

any evidence and asked to give any explanation about the evidence led against him.

In view whereof, the contention that the Enquiry Officer acted as a prosecutor is negatived.

It is further contended that the petitioner has been discriminated in respect of punishment. It is urged that in same set of facts two constables

were let off with the penalty of stoppage of one increment with cumulative effect whereas the punishment of compulsory retirement of Rajendra

Singh has been set aside and the matter is remanded to the Appellate Authority for reconsideration on the quantum of punishment in Writ Petition

No.110/2016 decided on 22.09.2016.

The decision in Rajendra Singh (supra) draws the distinction between the case of Rajendra Singh and present petitioner. In paragraph 18,

learned Judge, was pleased to observe:

Now, bearing in mind the aforesaid principles of law and looking to the factual matrix in hand, it is clear that petitioner Head Constable and

three constables were subjected to departmental enquiry on identical charges. The enquiry officer found the charges proved only against constable

Naresh Singh while the petitioner and other two constables namely Kanti Raj and Wasim Akhtar were exonerated of the charges. Charges against

constable Naresh were found proved for the reason that he was on duty between 3 am to 6 am and supposed to sit beside the bed where the

accused was handcuffed, but he did not inform the other two constables or the petitioner before going to respond to the call of nature. Due to

paucity of space to sit in the ward, other constables and petitioner were in the Verandah. Under these circumstances, the accused had fled away.

Therefore, for the act of omission of constable Naresh Singh, petitioner was not held responsible by the enquiry officer. The disciplinary Authority

dismissed Naresh Singh from services and let off the other two constables with lesser penalty of with-holding of one increment with cumulative

effect on the ground that they were newly recruited on compassionate grounds. The disciplinary Authority, as a matter of fact, did not attribute any

motive or element of mens rea to the petitioner facilitating the accused to escape. Instead what weighed with the disciplinary Authority is that the

petitioner was a Head Constable and was required to have supervisory control over the constables. Under such circumstances, lapse was

attributed to the petitioner and, accordingly, disciplinary Authority has imposed the punishment of dismissal from service upon him, which has been

later converted to compulsory retirement. In the opinion of this Court, the Authority ought to have considered the measure, magnitude and degree

of misconduct and the fact that constable Naresh was to sit near the bed where the accused was handcuffed. Further, from 9th to 13th May,

2014, during which period the accused had remained hospitalized, no lapse or negligence was attributed to the petitioner. Therefore, for the act of

negligence and omission of Naresh, the punishment imposed on the petitioner of compulsory retirement depriving him of his service tenure has

attributes of disproportionate penalty, moreso in view of the fact that during his service tenure the petitioner is reported to have earned as many as

170 awards. As such, the penalty imposed upon the petitioner has shocked the conscience of this Court. Therefore, though this Court can exercise

the jurisdiction for substitution of lesser penalty to strike a balance and equity in view of Article 14, it is considered apposite to remand the case to

the appellate Authority for imposition of lesser penalty upon the petitioner ensuring that he completes his service tenure and retires on reaching the

age of superannuation in normal course.

Thus, the petitioner is solely found to be guilty of charges as he derelicted in discharge of the duties assigned to him. In view whereof, petitioner

is not discriminated as to awarding the punishment of dismissal from service, being in consonance with the charges proved in the departmental

enquiry.

In view whereof, since the order inflicting punishment of dismissal from service is based on meticulous analysis of the cogent material evidence

on record and in accordance with the stipulations contained in the regulations and as no material has been commended at to establish that any

provision of regulations has been violated or that the finding arrived at by the enquiry officer is perverse, this Court declines to interfere with the

punishment meted out to the petitioner.

Consequently, petition fails and is dismissed.