Ram Sagar Sinha vs State of Chhattisgarh and Others

Manindra Mohan Shrivastava, J.—Heard. By this petition, the petitioner assails correctness and validity of order dated 30.09.2002 passed by the Deputy Inspector General of Police as revisional authority, whereby, the punishment awarded by the disciplinary authority has been enhanced to the extreme punishment of dismissal from service.

Brief mention of facts necessary for adjudication of the controversy involved in the writ petition are that while the petitioner was posted and working as Constable in II Battalion, Special Armed Force (BSF), Bilaspur, a departmental enquiry was instituted against him by issuing a charge sheet on 29.05.2001. After holding the departmental enquiry, the enquiry officer submitted a report (Annexure A/3) on 10.08.2001. After detailed analysis and scrutiny of evidence, the enquiry officer found charge No. 1 partly proved, whereas, charge No. 2 fully proved. On the basis of the enquiry report, the Disciplinary Authority vide its order dated 31.08.2001 (Annexure A-5) imposed penalty of withholding increment for one year.

In exercise of powers conferred under Regulation 270 of C.G./M.P. Police Regulations, Deputy Inspector General took up the matter suo motu and issued a show cause notice to the petitioner on 17.05.2002 (Annexure A-6). The petitioner submitted a detailed reply on 20.07.2002 (Annexure P/7). Thereafter, the revisional authority/DIG passed the impugned order on 30.09.2002 (Annexure A-8) enhancing the penalty to dismissal from service, which is impugned in this writ petition. The petitioner thereafter preferreds an appeal, which too has been dismissed vide impugned order dated 20.11.2002. Aggrieved with the order passed by the revisional authority and appellate authority, the petitioner has filed this writ petition.

Contention of learned counsel for the petitioner is that the enquiry officer in his detailed enquiry report found charge No. 1 only partly proved. The second part of charge No. 1, which was more grave as compared to first part of charge No. 1 was not held proved. The disciplinary authority considered this aspect and having found that charge No. 1 was partly proved only to the extent of unauthorised exit from the camp, taking into consideration other circumstances and past record, thought it proper to impose penalty of withholding increment for one year, but the revisional authority reversed the finding of disciplinary authority by holding charge No. 1 fully proved without considering the defence of the petitioner, evidence of the witnesses, enquiry report and the order of the disciplinary authority. Further submission is that the revisional authority also did not consider specific ground raised by the petitioner in reply to show cause notice and perfunctorily, without any examination, recorded that the petitioner has not raised any substantial ground, whereas, in the reply to show cause notice, the petitioner clearly stated that the charge of abuse and misbehaviour with Post Commander was not proved by any evidence and none of the witnesses supported that part of the allegation, therefore, that part of the charge, being a case of no evidence, was liable to be rejected. He further submits that the revisional authority on the finding that the charges are fully proved which included the entire allegations of charge No. 1 coupled with the past service records of the petitioner, imposed an extreme penalty of dismissal from service, therefore, the order passed by the revisional authority is arbitrary, illegal and without due application of mind. The appellate authority did not go into any of these aspects and mechanically rejected the appeal without recording any reasons.

On the other hand, learned counsel for the respondent submitted that even though the enquiry officer and disciplinary authority found charge No. 1 partly proved, the revisional authority upon minute scrutiny of evidence came to the conclusion that charge No. 1 is fully proved. The petitioner was afforded due and proper opportunity of hearing by issuance of show cause notice, which contained tentative reasons as to why the revisional authority proposed to enhance the penalty. The petitioner submitted his reply which was duly considered and then, the order was passed. Therefore, the order passed by the revisional authority is in accord with the statutory provisions contained in Regulation 270 of the Police Regulations and full opportunity of hearing was afforded to the petitioner. He further submits that the evidence recorded by the revisional authority is based on evidence and therefore, no interference would be permissible merely because another view was possible as this Court would not act as appellate authority. He further submits that the gravity of charges, which were found proved and the past records of the service of the petitioner, who is a member of disciplined force, was rightly taken into consideration by the revisional authority to enhance the penalty of dismissal from service.

A perusal of the charge sheet shows that the first charge against the petitioner was:

The charge therefore is in two parts. The first part of the charge relates to unauthorisedly leaving the campus in the night. The second part of charge No. 1 is more grave in nature as it alleges that after return to the camp, the petitioner abused the Post Commanded a Senior Officer and created unrest. The enquiry officer conducted enquiry and after recording statements of the witnesses produced during enquiry, recorded a finding that charge No. 1 is partly proved. A perusal of enquiry report (Annexure A-3) shows that the enquiry officer minutely scrutinized the evidence on record. He found that in view of the contradictory statement of the prosecution witnesses, second part of charge No. 1 that after returning to the camp, the petitioner abused and misbehaved with Post Commander is not proved. However, first part of the charge that the petitioner unauthorisedly left the campus was found proved. The disciplinary authority agreed with the finding of the enquiry officer and taking charge No. 1 as partly proved and further taking into consideration the past record of the petitioner which included both punishments as well as rewards, imposed penalty of withholding increment for one year. Charge No. 2 relates to past records of service of the petitioner, which have relevance in the matter of fixing quantum of punishment rather than by itself constituting a specific misconduct. A perusal of show cause notice dated (Annexure A/6) shows that the revisional authority took into consideration the evidence of two witnesses namely Phulsingh Banjare and Daya Shankar as also the statement of P.C. Madan Singh to come to the conclusion that charge No. 1 is fully proved. However, while undertaking the exercise of arriving at its own finding and holding charge No. 1 fully proved, the revisional authority did not traverse the finding recorded by the enquiry authority or the disciplinary authority. The prosecution had examined large number of witnesses as is revealed from the records, but number of witnesses did not support the story of the prosecution that the petitioner after returning to the camp, abused and misbehaved with the Post Commander. Precisely for this reason, the enquiry officer did not hold this part of the charge proved. However, the revisional authority did not consider the entire evidence on record.

In reply to the show cause, the petitioner clearly stated in para 4 of his reply that the independent witnesses to the incident have not supported the allegations of abuse and misbehaviour and he has referred to the evidence of witness - Dayashankar to submit that contrary evidence came on record that it was P.C. Madan Singh, who threatened and abused the appellant, which is supported by the statement of prosecution witness -Bhagirath. In the reply, it was also emphasised that there was no evidence of the petitioner being intoxicated. Lastly, the petitioner also stated regarding mitigating circumstances for not imposing major penalty. In para 2 of his reply, he has stated that the number of rewards is more than the number of punishments and the punishments have been awarded on petty mistakes. However, the impugned order passed by the revisional authority shows that all these aspects of the matter were not looked into much less given anxious consideration. The revisional authority though has jurisdiction to remit, vary or enhance the punishment imposed or order a fresh enquiry or take further evidence, but the order must be reasoned one. The statutory requirement in sub-rule 4 of Regulation 270 is that the revisionary authority is required to record reasons in writing. It, therefore, mandates that each and every ground is required to be dealt with separately and reasons have to be recorded in writing. The revisional authority did not consider the defence of the petitioner at all. If I may say so, the order is based on only one part i.e. prosecution case. Moreover, the revisional authority also did not consider the material in the form of detailed enquiry report by which, the enquiry authority, concluded that charge No. 1 was only partly proved. Specific reply of the petitioner contained in para 4 & 5 of his reply to the charge sheet, which contained submissions with reference to specific evidence of witnesses was also not considered.

Even on the aspect of quantum of punishment, the mitigating circumstances stated by the petitioner in his reply, particularly with regard to the number of rewards being more than the number of punishments were also not given due consideration. The order of enhancing the punishment to an extreme punishment of dismissal from service required much more serious consideration than what has actually been done by the revisional authority. Therefore, the order passed by the revisional authority cannot be sustained in law.

The aforesaid glaring aspects and illegality, which has crept in, while passing the order by the revisional authority have not been considered by the appellate authority. To my mind, the order of appellate authority is still worse as it considers nothing. This Court in the case of Ghasiram Kosariua vs. State of Madhya Pradesh and others has held that the appellate authority is enjoined with the statutory duty to apply its mind to each and every ground and pass reasoned and speaking order. The appellate authority has also abdicated its function by not considering any material and dismissed the appeal more or less mechanically.

In the result, the order passed by the appellate authority as also the order passed by the revisional authority are declared illegal and unsustainable in law and are set-aside. The matter is remanded to the revisional authority to reconsider the entire records of the case, evidence, defence of the petitioner and take appropriate decision in the matter. In compliance of the order passed by this Court, the petitioner shall be immediately reinstated in service, but the issue of back wages would be considered by the competent authority only in the event any penalty less than dismissal from service is imposed upon the petitioner. The petition is accordingly allowed in the manner and to the extent indicated above. No order as to cost(s).