Vijay Gupta (Asi) Vs State of Chhattisgarh

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2024:CGHC:35448

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 5923 of 2021

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1 - Vijay Gupta (Asi) S/o Late Shri Jugal Sao Aged About 55 Years R/o In Front Of Sanjay Park, Ramanujganj Road, Ambikapur, P.S. City Kotwali, Tahsil And District Surguja Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh

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... Petitioner

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versus

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1 - State Of Chhattisgarh Through Its Secretary, Department Of Home / Police, Mahanadi Bhawan, Mantralay, Police Station And Post Rakhi, Atal Nagar, New Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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2 - Director General Of Police (D.G.P.) Police Headquarters (Phq), Sector - 19, Police Station And Post Rakhi, Atal Nagar, New Raipur, District Raipur Chhattisgarh.

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3 - Inspector General Of Police (Igp) Office Of Inspector General Of Police, Surguja Range, District Surguja Chhattisgarh.

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4 - Deputy Inspector General Of Police (Digp), Administration Police Headquarters (Phq), Sector - 19, Police Station And Post Rakhi, Atal Nagar, New Raipur, District Raipur Chhattisgarh.

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5 - Superintendent Of Police (Sp) Office Of Superintendent Of Police Surguja, District

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Surguja Chhattisgarh.

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... Respondents

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For the Petitioner	: Mr.	Abhishek Pandey, Advocate
For Respondent/ State	: Mr.	Suyashdhar Badgaiya, Dy. G. A.

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({Hon'ble Shri Justice Sachin Singh Rajput})

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Order on Board

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10/09/2024

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The instant petition has been filed seeking following relief:-

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(I) That, this Hon’ble Court may kindly be pleased to direct the respondent authorities to produce all the relevant records relating to case

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of the petitioner before this Hon’ble Court for its kind perusal.

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(ii) That, this Hon’ble Court may kindly be pleased to set aside/ quash the impugned order dated 21.11.2016 (Annexure P/2) passed by respondent No.3/IGP, Surguja (CG).

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(iii) That this Hon’ble Court may kindly be pleased to set aside/quash the impugned order dated 28.05.2019 ( Annexure P-4) passed by respondent No.3/ IGP, Surguja (CG).

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(iv) That this Hon’ble Court may kindly be pleased to set aside/ quash the impugned appellate order dated 23.12.2019 (Annexure P/6) passed by respondent No.2/ DGP, PHQ, Raipur (CG).

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(v) That this Hon’ble Court may kindly be pleased to direct the respondent authorities to refund the amount to the petitioner which has been dedcuted pursuant to the impugned punishment order dated

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28.05.2019 passed by respondent No.3/IGP, Surguja (CG).

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(vi) That this Hon’ble Court may kindly be pleased to direct respondent No.2/DGP, PHQ, Raipur to decide the pending review applications of the petitioner dated 13.01.2020 ( Annexure P/7) and 10.08.2021 ( Annexure P/8).

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(vii) That this Hon’ble Court may further be pleased to direct respondents to give suitable compensation to the petitioner for the mental trauma and agony, harassment and hardships suffered by him as also cost of the litigation.

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Learned counsel for the petitioner submits that in the year 2014, the petitioner was working on the post of Assistant Sub Inspector (ASI) in Police Station- City Kotwali, Ambikapur, District Surguja, on some complaint being made against him, respondent No.5/ SP Surguja imposed minor punishment on the petitioner i.e. withholding of one increment for one year without cumulative effect vide Annexure P-1 dated 02.08.2016. The respondent No.3/ Inspector General of Police (IGP), Surguja Range, District Surguja (Chhattisgarh) vide its order dated 21.11.2016 Annexure P-2, directed the respondent No. 5/S. P. Surguja to initiate departmental enquiry against the petitioner disagreeing with the minor punishment imposed upon the petitioner. He submits that thereafter the charge-sheet was issued to the petitioner and on completion of the departmental enquiry the petitioner was inflicted with a major penalty to place the petitioner in minimum pay scale for one year on the post of ASI. Challenging the same, a departmental appeal was preferred by the petitioner before respondent No.2 / Director General of Police who after hearing the petitioner, rejected the same vide order dated 23.12.2019 Annexure P-6. Against which a review application was filed which also stood dismissed. Challenging all these orders by which the punishment was inflicted upon the petitioner, this writ petition has been filed. Learned counsel for the

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petitioner submits that initially vide Annexure P-1, only minor punishment of withholding an increment without cumulative effect was inflicted upon the petitioner which was revised by Inspector General of Police/ respondent No.3 vide order dated 21.11.2016. He submits that according to provision contained in Section 270 of CG Police Regulations 1861, such order cannot be passed by the Inspector General without giving an opportunity of hearing to the petitioner. Hence the entire proceedings carried out on the basis of Annexure P-2 liable to be set aside and the petition deserves to be allowed. He submits that without quashing the earlier order of minor penalty, the revisional order cannot be passed. Apart from this, he submits that the enquiry was not conducted in accordance with law and the petitioner was not afforded proper opportunity to defend himself and the enquiry Officer has not appreciated the evidence to its proper perspective, therefore, otherwise the impugned punishment order, appellate order and review order are also liable to be set aside.

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On the other hand, learned State counsel submits that the provision contained in subclause 4 of regulation 270 of CG Police Regulations would not come to rescue of the petitioner as the IGP Surguja has only directed to conduct a fresh enquiry and for which, the issuance of notice is not necessary. Apart from this, he submits that the allegations against the petitioner is serious in nature and during the course of departmental enquiry it was found that he did not incorporate Section 307 of IPC in an investigation in which the victim was badly injured and was not even in a position to record dying declaration. The petitioner having known this fact from telephonic conversation from the doctor failed to add Section 307 of IPC in investigation for two days and there are evidence on record to suggest that he demanded money from the complainant. Looking to seriousness of offence, the said punishment was inflicted upon the petitioner. He submits that by flix of action the amount recovered in light of minor punishment order, has been reverted back to the petitioner vide order 04.09.2024. He further submits that this Court cannot sit as an appellate Court in a

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criminal case to reappreciate the evidence brought before departmental enquiry and finding recorded in the departmental enquiry while rejecting the appeal of the petitioner, cannot be said to be perverse or contrary to the evidence which requires any interference by this Court, therefore, he prays that the writ petition sans merit liable to be rejected.

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Heard learned counsel for the parties and perused the record.

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This Court would like to deal with the first contention of Mr. Pandey as to whether before passing of order dated 21.11.2016 Annexure P-2, the respondent No.3/ IGP is required to issue notice to the petititioner in light of Proviso 2 Sub-clause 4 of Regulation 270 of CG Police Regulation or not. For ready reference, Regulation 270 is quoted hereinbelow:-

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“270. (1) Every order of punishment or exoneration, whether original or appellate shall be liable to revision suo-motu by any authority superior to the authority making the order.

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(2) Every appellate order by a final appellate authority shall be liable to revision by such final appellate authority on application made in that behalf by the person against whom the order has been passed.

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Explanation :-For the purpose of of this clause the expression "final appellate authority" means the final authority empowered to hear an appeal under Police Regulation 262.

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(3) The provisions of Regulation 266,267,268 and 271 shall be as nearly as may be apply to an application for revision.

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(4) The revising authority may for reason to be recorded in writing exonerate or may remit vary of enhance the punishment imposed or may order a fresh enquiry of the taking of further evidence in the case:

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Provided that it shall not vary or reverse any order unless notice has

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been served on the parties interested and opportunity given to them for

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being heard.

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(5) [Omitted]”.

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Clause 4 specificaly provides for four contingency upon which the exercise can be made by the appellate authority. One being exonerate or may remit vary of enhance the punishment imposed or in the other is fresh enquiry of taking further evidence in the case. Proviso Clause clearly envisages that there cannot be any varience or reversal of any order of punishment unless notice has been served upon the parties interested and opportunity given to them for being heard. The fact remains before passing an order of fresh enquiry of taking further evidence in the case, it does not appear that notice is required to be given to the petitioner, therefore, this contention is misconceived and is hereby rejected.

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This leads me to second submission as to whether departmental enquiry was conducted in accordance with law and petitioner was afforded proper opportunity of hearing and the finding recorded in the departmental enquiry is perverse to the record. The charges which have been leveled aganst the petitioner are quoted hereinbelow:-

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उनि�नि�जयगु्቎ातत्का०था�ाअंनि�कापुरहाल- था�ागांधी�गरकेनि�रू्ቍ आरोप :-

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आरोपक 0 01 :- था�ाअंनि�कापुरकेअपराधक 0 131/14 धारा 294,506 �ी, 323, 34 भादनि�के्ቚ करणमेंघट�ानिद�ांक 17.03.14 कोआहतचंचलअ्ቇ�ालकेचोटोंमुलानिहजा �कराकरनिद�ांक 19.03.14 कोआहतकामुलानिहजाकराईजाकर 02 निद�तककोई काय*�ाही�करनि��ेचक्ቛ ाराआरोपीकोलाभपंहुचा�ेकीनि�यतसे्ቚ करणमेंदोनिद��ाद नि�लं�सेधारा 307 जोड़करकत*व्यके्ቚ तितलापर�ाहीए�ंसंनिदग्धआचरणको्ቚ दቦኌ4त कर�ा।

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आरोपक 0 02 :- था�ाअंनि�कापुरकेअपराधक 0 131/14 धारा 294,506 �ी, 323, 34 भादनि�के्ቚ करणमेंहसमुदी�उ्ቛ* भु��सेनि��ेचक्ቛ ाराएकलाखरूपयेकीमांगकर�ा तथानिद�ांक 18.03.14 को 50000/- रूपयेलेकरअ�ु4ास�ही�ताको्ቚ दቦኌ4तकर�ातथा पु०रे०केपैरा 64 (2) ए�ं (4) काउ्ቤंघ�कर�ा।

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The charge-sheet also indicates the number of witnesses and the documents were

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relied upon. It does not appear as to whether this document was not supplied to the petitioner. Though the enquiry report has not been filed, however this Court from the appellate order can very safely gather that a detailed enquiry was conducted and evidence was recorded and finding of fact has been recorded by the Enquiry Officer. The appellate order also indicates that the case against the petitioner was proved in accordance with law. From perusal of appellate order and the documents available on record, it cannot be said that finding of guilt recorded against the petitioner is perverse or contrary to the record.

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The Hon'ble Supreme Court in the case of Deputy General Manager (Appellate

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Authority) and Others Vs. Ajai Kumar Shrivastava reported in (2021) 2 SCC 612 in Paras 24, 27 & 28 held as under:-

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24. It is thus settled that the power of judicial review, of the Constitutional Courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The Court/Tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority is perverse or suffers from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.

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27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises

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cannot sustain the finding of guilt even in the departmental enquiry proceedings.

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28. The Constitutional Court while exercising its jurisdiction of judicial review under Artcle 226i or Artcle 136i of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.”

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Apart from Hon'ble Supreme Court in the case of B. C. Chaturvedi Vs. Union of

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India and Others reported in (1995) 6 SCC 749 in Paras 12 & 13 held as under:-

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“12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary

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authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

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13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.”

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In the considered opinion of this Court, the case of the petitioner cannot fall within any of the parameter as stated above. This Court cannot reappreciate the evidence as if it is an appeal against a conviction in a criminal case. There are two categorical finding of facts recorded by departmental enquiry as well as by the appellate authority and cannot said to be perverse. The argument advanced by learned counsel for the petitioner has no force. Hence the instant petition is liable to be and is hereby dismissed.

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No cost.

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Sd/-

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({Sachin Singh Rajput}) JUDGE

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Parul

Vijay Gupta (Asi) v. State of Chhattisgarh

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Vijay Gupta (Asi) v. State of Chhattisgarh

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