State of Madhya Pradesh and Another vs Shivajirao

S.K. Dubey, J.

The State of M. P. has preferred this second appeal against the judgment and decree dated 3rd August 1987, passed by the District Judge, Guna in Civil Appeal No. 15-A of 1982 whereby the suit of the Plaintiff for declaring the order of dismissal as null and void, was decreed directing the Appellant to re-instate the Respondent with all ancillary benefits.

Brief facts leading to this appeal are as thus: The Respondent was employed as a constable in Special Armed Force of Guna. It was reported that the Respondent with 3 others, namely Const. R-778 Phoolsingh, Const. R-636 Ramcharanlal, Const. R-896 Kamarlal was absent from his duties unauthorisedly from 12-10-1980 to 14-10-1980 and was sitting on indefinite hunger strike, agitating the demands. A show cause notice dated 29-10-1980 (Ex. D-7) was issued, imputing therein that the act amounts to an heinous offence u/s 16 (a) of the M. P. VISHESH SASHASTRA BAL ADHIN1YAM 1968 (for short ''Bal Adhiniyam'').

A reply Ex. P 9 to this was submitted stating therein that in the whole of the Division of Gwalior. Police Constables were on strike for 20 Point demands, hence, in support of the agitation he also sat on strike. As the reply was not satisfactory, and order for holding an inquiry was passed by the Commandant; The delinquent submitted another reply dated 26-11-1980 (Ex D-2) In the end of which, the delinquent submitted that at the instance of others, he took part in agitation, for that he be pardoned and an opportunity be afforded to him to serve. One B. M. Apte was appointed Inquiry Officer, who proceeded with the inquiry from 19-11-1980 to 2-3-1980. Thereafter, the inquiry was entrusted to Company Commandar Govind Singh Rathore. In the inquiry the statements of Sbyamrao, Rambahadur Rana, Jagramsingh and C. K. Bajpai, were recorded. No statement of the delinquent employee was recorded, but, he was cross-examined by the Inquiry Officer by putting over 17 questions. The statement is Ex. P-15. After the report of the inquiry dated 7-4-1981 (Ex. D-4) a notice dated 31-8-1981 to show cause was issued, and thereafter, the delinquent employee was dismissed vide order dated 31-8-1981 (Ex. P-16). During the pendency of the inquiry the delinquent submitted an application Ex. D-3A for pardoning him, but, the apology was not accepted.

Alter serving a notice Ex. B-1, u/s 80 C. P. Code, the delinquent instituted the suit for declaration on 23-1 1-1981. The trial Court dismissed the suit. The delinquent preferred an appeal which was allowed, whereby the dismissal order was set-aside the delinquent was re-instated with all benefits.

Against the judgment and decree of the lower appellate Court the State preferred this second appeal, in which five questions of law were framed.

Shri M. M. Qureshi learned Dy. Govt. Advocate for Appellant State and Shri R. D. Jain and Shri K. K. Lahoti learned Counsel for the Respondent were heard.

In this case, it is not disputed that the delinquent was not prosecuted before a competent court for an offence u/s 16 (a) of BAL ADHINIYAM. It is also clear that the delinquent was not dismissed u/s 19 on a sentence passed by the Court. The State instead of prosecuting the delinquent u/s 16 (a) for the offence proceeded depart-mentally. Section 16 (a) and Section 19 reads as under:

S. 16-More heinous offence-Every Officer of the Special Arm ad Force who-

(a) begins, excites, causes or conspirous cause, or joint any mutiny or being present at any mutiny does use his utmost endeavours to suppress it, knowing or having reason to believe in the existence of any mutiny, or of any intention or conspiracy to mutiny, or of any conspiracy, against the State, does not without delay, give information thereof to the superior officer ; or

XX XX XX XX

S. 19 Place of imprisonment and liability to dismiss on imprisonment:

(1) Every person sentenced under this Act to imprisonment may be dismissed from the Special Armed Force, and his pay, allowance and any other money due to him, as well as any medels and- decorations received by him shall further be liable to forfeiture;

(2) Every such person shall, if he is so dismissed, be imprisoned in a prison, as the State Government may, by notification specify in this behalf, but if he not so dismissed from the Special Armed Force, he may, if the Court so directs be confined in quarter guard or such other place as the Court may consider suitable.

The inquiry was held in accordance with M. P. Police Regulations. Regulation 228 lays down the procedure. Admittedly the delinquent was holding a Class III (non-ministerial) post in the Police Department, hence, M.P. Civil Services (Classification) Control and Appeal Rules, 1966 (for short the Rules of 1966) do not apply, but for such employees the inquiry has to be conducted in the manner as laid down in M. P. Police Regulations framed under the provisions of Indian Police Act, hence, the finding of the lower appellate Court, that the inquiry was not in accordance with the Rules of 1966 is not correct and cannot be sustained as Rules of 1966 are not applicable, which is evident from the Schedule u/s Rules 7 and 19 of the Rules of 1966.

The finding of the lower appellate Court that the inquiry was against the principles of natural justice in the facts of the case does not call for any interference A bare perusal of the record of the inquiry clearly shows that the delinquent is an illiterate person was not afforded a proper opportunity to defend his case. The prosecution witnesses were examined by the inquiry Officer, who were not cross-examined by the delinquent. Statement of delinquent was also not recorded, but, he was cross-examined by the Inquiry Officer. Such a procedure adopted by the Inquiry Officer is not provided even in the Police Regulations. Regulation 228 lays down that when and how the inquiry is to beheld. The procedure prescribed is (a) the charges; (b) the evidence on which the charge is based, (c) the defence of the accused, (d) the statement of his witnesses (if any); (e) the finding of the imprisonment, with the reasons on which it is based; (f) the Superintendent''s final order of recommendation, as the case may be. The above procedure nowhere lays down that the Inquiry Officer can act as a Prosecutor and Judge both. From the proceedings of the inquiry, it is abundantly clear that the role played by the Inquiry Officer was not that of an Inquiry Officer, but, he acted both as a Prosecutor and a Judge. Such a role played by the Inquiry Officer is not only against the Regulation 228, but, is also clearly in violation of Principles of natural justice. (see-Division Bench case of this Court in M. P. No. 15/84 Shyamkant Tiwari Vs. State of Madhya Pradesh and Others, and case of Shyamkant Tiwari v. State of M. P.).

The other material defect in the inquiry is that from the record of the inquiry, it is not clear whether the delinquent was afforded an opportunity to lead evidence in defence. It is also clear that the extenuating and aggravating circumstances of the act committed, and the apology tendered was not considered. It is trite law that inquiry is not an empty formality. It is a serious proceeding intended to give the delinquent concerned a chance to meet the charge and to prove his innocence. It has to be conducted according to the relevant statutory rules relating to it and principles of natural justice. From the record of the inquiry produced and evidence on record, it is clear that the principles of natural justice were violated.

Besides, the order of dismissal based on the heinous offence committed u/s 16 (a) of the BAL ADHINIYAM, cannot be sustained, as the delinquent was not tried and convicted for the offence, therefore, State cannot resort to Section 19 of BAL ADHINIYAM. It is true that the charge u/s 16 (a) of BAL ADHINIYAM is a serious one, but, this could only have been decided by a Magistrate of competent jurisdiction. That having not been done, and action taken was departmentally for a major misconduct, in that case even if the charge is found proved, the Regulation 226 ought to have been followed. Clause (a) of Regulation 228 (1) lays down that the dismissal is the last resort and, ordinarily not be inflicted until all other means of corrections have failed. Neither the Inquiry Officer, nor the Appointing Authority who passed the order of dismissal recorded any finding in this respect, therefore, also the dismissal order deserves to the set-aside.

As the order of dismissal has been set-aside on the basis of illegal inquiry, ordinarily a delinquent is to be re-instated with a liberty to the employer to hold an inquiry afresh. But, whether the delinquent should be left to the mercy of the employer or he should be allowed to serve peacefully, the sword should not hang on his neck till the inquiry is complated. And, thereafter, again the delinquent should not be dragged into a litigation for another decade, an appropriate order can be passed to decide the matter finally. The Apex Court in case of Bhagatram (AIR 1983 SC. 434) has held, obviously the purpose of the Management, if permitted, is to hold afresh inquiry and impose some penalty, and the penalty so imposed may be commensuration with the gravity of the mis-conduct and that any penelty not commensurating with the penalty of the misconduct would be violative of Article 14 of the Constitution, the punishment was imposed. Following Bhagatram''s case, a Division Bench of this Court in case of Amreek Singh (Supra) in a petition under Art, 226 considering the facts that the Petitioner remained out of employment for about a decade the matter was decided once for all re-instating the Petitioner with 50% of back wages withholding two annual increments with future effect. In this case also the delinquent Respondent is lacing the litigation since last about 10 years, though the dismissal order had been set-aside, but, it would not be just and fare to give liberty to State to proceed afresh. Considering the circumstances of this case and the charge, it would be just and fair to award some punishment to Respondent. Considering the charge and the fact that the Respondent apologised, and Regulation 226 was not followed. It would be just and fair to reinstate the delinqnent with continuity of service, and with 50 percent of back wages with a further condition that this three annual increments with future affect be withheld.

In view of the above, it is not necessary for me to deal with other questions involved in the case.

In the result, the appeal is partly allowed in the manner indicated hereinabove:

In the circumstances of the case parties to bear their own costs.