Judgment:
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.18377/2012 Drigpal Singh.
Vs State of Madhya Pradesh and otheRs.PRESENT : Hon’ble Shri Justice K.K.Trivedi.J.Shri R.K.Verma, learned counsel for the petitioner.
Shri Rajesh Tiwari, learned Govt.
Advocate for respondents.
ORDER
(11.02.2014) The petitioner, a Constable was subjected to a departmental enquiry on account of allegation levelled against him by the Superintendent of Police, Chhatarpur.
It was alleged that the petitioner, who was a driver, took the Government vehicle in intoxicated condition on a public place and committed a serious misconduct.
The petitioner also caused damage to the police station.
The enquiry was conducted after obtaining the reply of the petitioner and a finding was given holding that the petitioner was guilty of the misconduct.
The previous record of services of the petitioner was taken note of and a major penalty of removal from service was imposed on the petitioner.
An appeal was preferred by the petitioner before the departmental appellate authority, which was dismissed, therefore, a mercy petition was filed by him, which too was dismissed.
The petitioner approached this Court by way of filing a Writ Petition No.2298/2011 against the said order of penalty.
It was contended that under Regulation 226 of M.P.Police 2 Regulations (hereinafter referred to as Regulations for brevity).the petitioner was not to be imposed with such a major penalty and, in fact, the penalty of removal from service was liable to be set aside.
These aspects were not considered by the disciplinary authority as also by the disciplinary appellate authority, therefore, the order was liable to be quashed.
2: This Court considering the law laid down by the Apex Court in the case of State of Mysore Vs.K.Manche Gowda (AIR1964SC506 as also in the case of Surendra Prasad Pande versus State of Madhya Pradesh and others [2007 (3) MPHT565, reached to the conclusion that the penalty of removal from service was a severe penalty which was required to be reconsidered by the authority.
The order of penalty was quashed and the matter was remitted back to the disciplinary authority for passing the order in view of the observations made by the Court with respect to the law laid down by the Apex Court and by this Court.
3: The petitioner approached the respondents authorities once again and made several applications.
However, instead of considering the provisions of Regulation 226 of Regulations, again by the impugned order dated 24.9.2012, the petitioner is visited with a penalty of compulsory retirement without regularising the period of his absence from service but regularising the period of suspension only, therefore, the present writ petition is filed by the petitioner.
4: It is contended by learned counsel for the petitioner that in view of the provisions of Regulation 226 of Regulations, the petitioner would not be liable to be 3 punished in such a manner.
This aspect has not been considered by the departmental authorities, therefore, the writ petition is straight way filed before this Court.
5: By filing a return, it is stated by the respondents that they have looked into all the facts and circumstances, have applied their mind and have taken a decision to impose a penalty of compulsory retirement on the petitioner.
This order of penalty is not directly challengeable in a writ petition as appeal is required to be filed by the petitioner.
It is, thus, contended that the petition is liable to be dismissed.
6: Heard learned counsel for the parties at length and perused the record.
7: The only controveRs.is whether any consideration was done with respect to the punishment prescribed for the Constable in the M.P.Police Regulations in terms of the observations made by this Court or not.
Regulation 226(iii) prescribes the punishment of a Constable in the following manner :- “226.
Punishments – Offences for which given.- The following rules should be observed in determining what penalty should be awarded for any particular offence :- (i)(a) Dismissal is the last resource and should, ordinarily, not be inflicted until all other means of corrections have failed.
(b) If dismissal is considered too severe a punishment for a Sub-Inspector, he should be removed from the service (this does not amount to dismissal).Note.- The vacancy of an officer dismissed should 4 not be filled in the case of a constable, or permanently, in the case of head constable and above, until the period of appeal has expired.
(ii) Reduction in rank is a suitable punishment for incompetence, or cases of serious dereliction of duty in which dismissal or removal is considered to be too severe a puishment.
As a general rule, Sub- Inspectors who are directly recruited should not be punished by reduction to Assistant Sub-Inspector.
The reduction to Assistant Sub-Inspector or Sub- Inspectors who were appointed by promotion from the rank of Head Constables or Assistant Sub- Inspector is permitted.
(iii) Withholding of increment either temporary or permanent (or grade reduction in the case of head constables).is a suitable punishment for all cases of serious dereliction of duty.
It may also be inflicted for culpable ignorance of police procedure, laziness or apathy in conducting the work of the police station, and the like.
Fair warning should be given in every instance and opportunity for amendment afforded before the punishment is awarded.
In the case of a constable, the period of deprivation shall not exceed a year, nor is it advisable that a constable should be deprived of more than one increment at a time.
If, after a departmental enquiry for a subsequent offence, it is found advisable to inflict this punishment on a constable already under reduction, the proper order to pass is one extending the reduction by a period not exceeding one year.” Note.- When an officer in a graded posts is reduced permanently, his place in the grade to 5 which he is reduced must be determined at the time of passing the order of reduction with due regard to the amount of punishment deserved.
(iv) An increment which has fallen due may be withheld for a definite period for inefficiency or unsatisfactory service.
In the case of a constable, it shall not be withheld for more than one year in the fiRs.instance.
If a subsequent offence justifies extension of this period, a departmental enquiry is necessary.
Note.- In all case where orders are passed withdrawing or withholding an increment, it must be clearly stated whether subsequent increments are to be postponed or not.
In the cases of constables they should not be postponed.
(v) Fine is an appropriate punishment for repeated carelessness and disobedience of ordeRs.unpunctuality and the like.
Fines should be moderate in amount; the loss of half a month's pay is the utmost that should ever be inflicted, save in very exceptional circumstances.
The fining of constables is prohibited.
(vi) In the case of head constables and constables, minor offences against discipline should be dealt with, firstly, by warning, and if this proves ineffectual, by the infliction of the minor punishments specified in regulations 216 and 217 (b).or by detailing the offender to a couRs.of more irksome and unpopular duties.
(vii) The transfer of a police officer to an unhealthy or unpopular post as a punishment is strictly forbidden.” 8: The petitioner had pointed out these facts.
All these 6 circumstances were taken note of by this Court in the earlier writ petition of the petitioner wherein the earlier order of punishment dated 30.4.2009 was quashed.
If the order of removal from service was quashed by this Court, the consequence of the same was reinstatement of the petitioner in service.
This particular aspect was also not looked into by the respondents while passing the order impugned dated 24.9.2012.
Secondly, the provisions of Regulation 226 of Regulations were also not taken into consideration and mechanically holding that a serious misconduct was committed by the petitioner, a penalty of compulsory retirement was imposed on him treating him as an ex-employee.
It could not be done in any manner with retrospective effect.
FiRs.of all, the petitioner was to be reinstated in service and then the order of penalty was to be issued with prospective effect that too keeping in view the prescribed penalty under Regulation 226 of Regulations and not otherwise, if there was no other recouRs.of correction of petitioner.
9: Nothing has been said in this respect in the return of the respondents.
Mere statement that in the earlier round of litigation, the observations were made by this Court, facts were taken into consideration and a penalty was imposed on the petitioner is not enough.
The respondents have not filed any parawise reply of the petition, whereas, they were required to meet out all such allegations which the petitioner has made in the writ petition with respect to the application of provisions of Regulation 226 of Regulations.
That being so, the order impugned cannot be sustained.
10 : Consequently, this writ petition is allowed.
The order dated 24.9.2012 is hereby quashed.
The petitioner be 7 reinstated in service, if he has not completed the age of superannuation.
The respondents to consider the imposition of penalty strictly in terms of provisions of Regulation 226 of Regulations, keeping in view the observations made by this Court in Writ Petition No.2298/2011 decided on 25.7.2012, and to pass a fresh order in respect of penalty against the petitioner, within a period of three months from the date of receipt of certified copy of the order passed today.
11 : The writ petition is allowed to the extent indicated herein above.
There shall be no order as to costs.
(K.K.TRIVEDI) Judge A.Praj.