The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.3973 of 2014 Brundaban Pradhan …. Petitioner -versus- D.G. And I.G. of Police & Ors. …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 03.02.2023 Order No 08. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. G.R. Sethi, learned counsel for the Petitioner and Mr. D.K. Mohanty, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. This writ petition has been filed challenging the notice issued by the D.G. & I.G. of Police-O.P. No. 1 under Annexure-6, wherein the Petitioner was directed to file his show-cause as to why he will not be dismissed from his service. 4. Learned counsel for the Petitioner contended that in a proceeding initiated against the Petitioner under Annexure-1 the Petitioner duly participated in the said proceeding and originally the Disciplinary Authority passed the following order of punishment under Annexure-3:- “The enquiry of the proceeding has been conducted in a free and fair manner following to the principles of natural justice. During enquiry the EO. has recorded all the 08 PWs, and exhibited 06 documents in favour of the prosecution to bring home the charge. Hence, after // 2 // proper analysis of records available in the proceeding file and after due application of mind, I agree with the findings of the E.O. and hold the NK/1140 B.B.Prodhan (now Havildar Cuttack district) guilty of the charges inflicted upon him. As such I award him the punishment of forfeiture of increment for a period of six months without cumulative effect, which is equal to the value of one Black Mark and treat the period of suspension from 25.05.99 PM to 06.08.99 AM as such.” 5. Challenging the order of punishment passed by the Disciplinary Authority when the Petitioner preferred an appeal, the Appellate Authority vide his order dtd.02.02.2012 under Annexure-4 rejected the appeal by confirming the order of punishment passed against the Petitioner by the Disciplinary Authority under Annexure-3. The Petitioner thereafter when moved a revision petition before the O.P. No. 1 under Annexure-5 challenging the order passed by the appellate authority, the impugned notice was issued to him under Annexure-6 with a direction to file his show-cause as to why he will not be dismissed from his service taking into account the nature of allegation raised against him in the proceeding in question. 6. Learned counsel for the Petitioner contended that the Petitioner challenging the order of punishment passed against him with award of one black mark by the Disciplinary Authority under Annexure-3 when preferred an appeal, the Appellate Authority simply rejected the same by confirming the order of punishment. Though under the Police Manual there is no such provision to preferred any revision, but the Petitioner on wrong advice prefer such a revision before the O.P. No. 1. But the Opp. Party No. 1 issued the the impugned notice under Annexure-6 by proposing to remove the Petitioner from his service. Page 2 of 4 // 3 // 7. Learned counsel for the Petitioner contended that on the face of the punishment imposed against the Petitioner i.e. the award of one black mark, the proposed punishment of dismissal is not proportionate to the alleged misconduct and O.P. No. 1 is also not competent to issue such a notice by entertaining the revision. Learned counsel for the Petitioner also contended that the Tribunal while issuing notice of the matter on 12.12.2014 stayed the operation of order dtd.26.11.2014 and the Petitioner is continuing in his service. 8. Mr. D.K. Mohanty, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that the impugned show-cause under Annexure-6 has been issued taking into account the power vested on the D.G. & I.G. of Police vide Police order No. 250 under Annexure-A/1. It is contended that as per the aforesaid police order No. 250 it is open for the Revisional Authority to exercise the power under Rule 853 on enhancement of the punishment after giving opportunity to the delinquent employees. Accordingly, it is contended that since taking recourse to the provision contained under Rule 853 vis-à-vis police order No. 250 the impugned notice has been issued, no illegality has been committed. It is also contended that the Petitioner is free to make his reply to the same and thereby enabling the O.P. No. 1 to take a final decision in the matter. 9. I have heard Mr. G.R. Sethi, learned counsel for the Petitioner and Mr. D.K. Mohanty, learned Addl. Standing Counsel appearing for the Opp. Parties. On the consent of both the Parties, the matter Page 3 of 4 // 4 // was heard finally at the stage of admission and disposed of vide the present order. 10. Having heard learned counsel for the Parties and after going through the materials available on record it is found that the Disciplinary Authority as well as the Appellate Authority taking into account the nature of charge framed against the Petitioner, awarded him with punishment of one black mark. It is also found that there is no provision under the Police Manual to prefer any revision and such revisional power can only be exercised suo moto. But the Petitioner as found from the record filed a revision before the O.P. No. 1 under Annexure-5 and while dealing with the same the O.P. No. 1 issued the impugned notice under Annexure-6. 11. It is also found from the impugned notice under Annexure-6 that the same has not been issued relying on the provision contained under Rule 853 vis-à-vis police order No. 250. Therefore, the reason which was not indicated in Annexure-6 cannot be taken by the O.P. No. 1 by filing a counter in view of the decision of the Hon’ble Apex Court in the case of M.S. Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors. This Court also finds that the proposed punishment of dismissal from service is not in consonance with the nature of charge framed against the Petitioner. Therefore, this Court is inclined to quash the impugned notice under Annexure-6. While quashing the same, allows the writ petition. 12. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Page 4 of 4