Panna Lal Sahu vs State Of Chhattisgarh

This writ petition is directed against the order dated 29.4.2011 (Annexure PÂ4) by which respondent No.2 in exercising the review power under

Section 29(1) of the Chhattisgarh Civil Services (Classification, Control & Appeal) Rules, 1966 (hereinafter called as 'Rules of 1966') converted the

punishment of stoppage of one increment with cumulative effect for one year to the penalty of removal from service.

In a departmental proceeding initiated against the petitioner for consuming liquor at public place and snatching ₹200/Â from one Sahu Ram and for

acting negligently in performance of his official duty, the Superintendent of Police, Korba/Disciplinary Authority by order dated 18.6.2009 (Annexure

PÂ1) inflicted minor penalty of stoppage of one increment without cumulative effect for one year. Against the order imposing penalty, the petitioner

preferred an appeal before respondent No.2 i.e. Inspector General of Police, Bilaspur Range, Bilaspur. The Inspector General of Police / Respondent

No.1 finding that the petitioner has been acquitted from criminal charge of robbery, setÂaside the penalty imposed by the disciplinary authority and

remanded the matter to the disciplinary authority for fresh departmental proceedings for one charge except charge with regard to robbery from one

Sahu Ram by order dated 21.12.2009 (Annexure PÂ2) in exercise of suoÂmotu revisional jurisdiction under Regulation 270(1) of the Chhattisgarh

Police Regulations. In second round of departmental enquiry, by order dated 7.10.2010 (Annexure PÂ3) the disciplinary authority directed for

stoppage of one increment with cumulative effect for one year, against which, the petitioner again preferred an appeal before the appellate authority.

The appellate authority by order dated 29.4.2011 (Annexure PÂ4) declined to consider the appeal on merits holding that he has already exercised

suoÂmotu revisional jurisdiction on 21.12.2009 and invoked review power purportedly under Section 29(1) of the Rules of 1966 and inflicted penalty of

removal from service and also held that for suspension period the petitioner will not be entitled for service benefits.

The petitioner has called in question the order dated 29.4.2011 (Annexure PÂ4) stating interÂalia that by exercising the review power, proviso to

Rule 29(1) of the Rules 1966 has not been complied with and he has not been given a reasonable opportunity of making a representation against the

said penalty of removal from service and appeal ought to have been decided on merits, which has also not been considered.

Return has been filed by the respondents justifying the impugned order.

Mr.M.K.Beag, learned counsel for the petitioner, would submit that the impugned order is unsustainable and bad in law as reasonable opportunity of

making a representation against the penalty proposed as required under proviso to Rule 29(1) of the Rules of 1966 has not been afforded to the

petitioner while exercising review jurisdiction by which the partitioner has suffered prejudice and without hearing and without even serving a copy of

enquiry report, the petitioner has been directed to be removed, which is unsustainable and bad in law.

On the other hand, Mr.Sunil Otwani, learned Additional Advocate General with Mr.Ravi Bhagat, learned Deputy Government Advocate for the

respondents/State, would submit that looking to the misconduct found proved against the petitioner he has rightly been removed from service by

inflicting the penalty of removal from service and as such, the writ petition deserves to be dismissed.

I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost

circumspection.

It is not in dispute that for two charges levelled against the petitioner, disciplinary enquiry was conducted against him by the disciplinary authority, in

which by order dated 18.6.2009 the disciplinary authority has imposed penalty of stoppage of one increment without cumulative effect for one year,

against which, he preferred appeal before the appellate authority, but the appellate authority in appellate proceeding invoked revisional jurisdiction

under Regulation 270(1) of the Chhattisgarh Police Regulations and setÂaside the punishment so awarded and remanded the matter to the disciplinary

authority for fresh departmental proceedings for one charge only. In second round, the disciplinary authority only conducted enquiry in respect of one

charge as directed by the appellate authority as in the meanwhile, the petitioner was acquitted from charge of robbery. This time, the disciplinary

authority imposed punishment of stoppage of one increment with cumulative effect and also held that for suspension period the petitioner will not be

entitled for other benefits except which he has already obtained. When the petitioner again preferred an appeal against the order of the disciplinary

authority dated 7.10.2010, the appellate authority did not decide the appeal preferred by the petitioner holding that he has already exercised suoÂmotu

revisional power by order dated 21.12.2009 and invoked review jurisdiction under Rule 29(1) of the Rules of 1966 and converted the punishment of

stoppage of one increment with cumulative effect for one year to the penalty of removal from service. It is pertinent to mention here that in absence

of provisions of review in the Chhattisgarh Police Regulations, Rules of 1966 would apply. (See Premchandra v. State of MP 1970 MPLJ 430 and

Krishnanaryan shivpyare Dixit v. State of M. P. and others 1985 MPLJ 343.)

At this stage, it would be appropriate to notice Rule 29 (1) of the Rules of 1966 which states as under:Â​

“29. (1) Notwithstanding anything contained in these rules except Rule 11Â​

(i) the Governor; or

(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, or

(iii) the appellate authority, within six months of the date of the order proposed to be reviewed, or

(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 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 mayÂ​

(a) confirm, modify or set aside the order; or

(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or

(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; or

(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 the 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 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; or

(ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.â€​

A careful perusal of the aforesaid provisions would show that if the reviewing authority is of the opinion that penalty has to be enhanced, then he

has to give a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the 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 and no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 14 and except after consultation with the

Commission where such consultation is necessary.

Reverting to the facts of the present case in the light of aforesaid rule position, it is quite vivid that though after remand by the disciplinary

authority, fresh enquiry was conducted and the disciplinary authority inflicted with penalty of removal while exercising review jurisdiction under Rule

29(1) of the Rules of 1966, but the petitioner has not been given a reasonable opportunity of making a representation against the penalty proposed i.e.

removal from service. The reviewing authority tookÂup the appeal preferred by the petitioner for hearing and without complying with the provisions

contained in Rule 29(1) of the Rules of 1966 straightway order of removal from service has been passed as he has given opportunity to make a

representation against the proposed enhanced penalty and even other part of the provisions contained in Rule 29(1) of the Rules of 1966 has not been

complied with, which is in teeth of the provisions contained in Rule 29(1) of the Rules of 1966.

Not only this, appeal preferred against the order of disciplinary authority dated 07.10.2010 has even not been decided on merits by the appellate

authority holding that he has already exercised revisional power and exercising review jurisdiction punishment from removal of service has been

inflicted.

In that view of the matter, the order passed by the appellate authority being reviewing authority dated 29.4.2011 (Annexure PÂ4) is hereby setÂ‐

aside. However, the order passed by the disciplinary authority dated 07.10.2010 (Annexure PÂ3) to the extent of stoppage of one increment with

cumulative effect is hereby restored. The petitioner will be entitled for full pay and allowances from 25.6.2008 to 30.4.2009 and he will also be entitled

for all consequential service benefits since he has already attained the age of superannuation on 17.8.2018.

The writ petition is allowed to the extent indicated hereinabove. No order as to cost(s).