Om Prakash Sikarwar vs State Of M.P. & Ors.

Present petition filed by a Subedar (ministerial) under the Special Armed Force questions the legality and validity of chargesheets dated 04.01.2014 and 23.01.2014 (Annexure P/2 and P/3) on the solitary ground of the same having been issued by incompetent authority i.e. the DIG.State has filed its return but has not responded to the aforesaid ground of incompetence of the DIG to issue chargesheet and has merely stated in the return that a chargesheet in a pending diciplinary proceedings is not amenable to judicial review.

The aforesaid contention of the State is heard to be dismissed at the very outset since the ground of challenge to the impugned chargesheet goes to the root of the matter and therefore can very well be tested on the anvil of judicial review under Article 226 of Constitution.

Learned counsel submits by referring to Rule 47(3) of M.P.Vishesh Sashastra Bal Niyam, 1973 ("1973 Rules" for breviety) which lays down that while dealing with Class III and Class IV officer in Vishesh Sashastra Bal (Special Armed Force) (petitioner belongs to Class III category of post), the same procedure as prescribed under the M.P. Police Regulation shall be followed and the Commandant under the Rules of 1973 shall be deemed equivalent to Superientendent of Police in the District Police. For ready reference and convenience Rule 47(3) is reproduced below:-

"47. Procedure for awarding punishments. - (1) xxxx

(2) xxxxx

(3) In case it is decided to deal with the accused departmentally, then in the case oi Class III and IV officers, the same procedure will be adopted as is prescribed in the Madhya Pradesh Police Regulations for dealing with officers of corresponding rank in the District Police and the Commandant will be deemed to be a Superintendent of Police for the purposes of awarding punishment prescribed for subordinate Police Officers under the Police Regulations The procedure for departmental action against officers of Class I and II will be governed by the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 and the service rules of the respective services."

The post of Subedar (M) in SAF, held by the petitioner at relevant point of time is equivalent to the post of Inspector in the Police under the M.P. Police Regulation. The M.P. Police Regulation in clause 228 confers the Superientendent of Police with the power to initiate disciplinary proceedings inter alia again an officer of the rank of Inspector of Police. For ready reference and convenience clause 228 of the M.P. Police Regulation is reproduced below:-

"228. D.E.- When and how held - In every case of removal, compulsory retirement from service, reduction in rank, grade or pay or withholding of increment for a period in excess of one year a formal proceedings must be recorded by the Superintendent in the prescribed form,-setting forth.

(a) the charge;

(b) the evidence on which the charge is based;

(c) the defence of the accused;

(d) the statements of his witness (if any);

(e) the finding of the Superintendent, with the reasons on which it is based;

(f) the Superintendent's final order or recommendation, as the case may be;"

Petitioner has relied upon Division Bench verdict in the case of Arun Prakash Yadav Vs. State of M.P. & ors. (2013) 3 MPLJ 508 whereby Division Bench of this court while differing with the earlier divergent views of two saperate single benches, ironed out the creases and held that the competent authority to initiate disciplianry proceedings/ issue chargesheet in case of an Inspector of police is the SP of district with the exclusion of any other subordiante/superior officer of police. Relevant para 20 and 21 of the said judgment is reproduced below for ready reference and convenience:-

"20. A bare reading of Regulation 228 indicates that Superintendent alone has been mentioned as the authority to frame and issue a charge-sheet in respect of major penalty or penalties which have the effect of major penalties. The term "Superintendent" means the Superintendent of Police, which is evident from Regulation 32 which describes the SP as the head of the Police Force of his District. The Police Regulations do not precribe the competence of any authority to issue a charge-sheet in any other provisions except Regulation 228, which solely empowers the SP. This power of issuance of charge-sheet is bestowed upon the SP in regard to all persons holding the ranks subordinate to that of the SP. By necessary implication, the provisions of Regulation 228 exclude all authorities, superior or inferior to the SP to issue a charge-sheet to any Police personnel holding the rank subordinate to that of SP. It can, thus, be safely held that for an Inspector of Police, which in rank is subordinate to SP, the sole competent authority to issue charge-sheet is the SP under the Police Regulations, which exclusively govern the field as held supra.

From the above discussion, it is crystal clear that no other authority except SP is empowered under the Police Regulations to institute disciplinary proceedings/issue charge-sheet to an Inspector of Police."

Learned counsel for the petitioner and the State do not dispute that ratio laid down in the case of Arun Prakash (supra) applies squarely to the present cause where the impugned chargesheet has been issued by DIG against the petitioner holding the rank of Subedar (M) in SAF which is corresponding to the rank of Inspector of Police in district Police.

Thus it is not disputed and infact palpable from the record that impugned chargesheet has been issued not by the Commandent of SAF which is a post corrosponding to the post of SP of District Police.

Accordingly, this Court has no hesistation to hold that impugned chargesheets have been issued by an incompetent authority.

Consequently, the impugned chargesheets Annexure P/2 and P/3 so far as they relate to the petitioner, are quashed.

The comptent authority however shall be at liberty to initiate disciplianry proceedings if so advised and if law permits in the changed circumstances of petitioner having attained the age of superannuation on 31.08.2015.