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`2006(3) JLJ 246
T.K. Maheshwari, J.
Vikram Singh Rana v. State of M. P. and others
Writ Petition No. 6293 of 2003;
Decided on 20.4.2006.
Respondent No.3 is the disciplinary authority who has passed the order inflicting penalty of withholding of two increments with cumulative effect against the petitioner as per order dated 28.7.1998. It is also not in dispute that petitioner has preferred an appeal challenging such an order before respondent No.2. The respondent No.2 decided the appeal vide order dated 18.2.1999 rejecting it, and affirming the order of the disciplinary authority.
After passing of the order by the appellate authority, issuance of show cause notice by him on the same date, i.e., 18.2.1999, stating that why the suo motu revisional powers should not be exercised merely for enhancement of the penalty, is not proper. It is said, that punishment imposed by the disciplinary authority is not commensurate to the gravity of the charges. Thereafter another show cause notice for proposed penalty was issued by respondent No.2 on 16.3.1999 to remove the petitioner from service. Both these notices have been challenged in the present case. [Para 6
Held : On bare reading of clause 270(1) it is apparent that the authority who is exercising the suo motu powers of revision must be superior to the authority making the order. In the present case, respondent No.3 has passed the order which was challenged before the appellate authority, i.e., respondent No.2. The appellate authority, i.e., respondent No.2 has passed the final order on 18.2.1999, thereafter he has no jurisdiction to invoke the power under clause 270(1) of the Police Regulations. Clause 270(2) of the M.P. Police Regulation deals with those cases in which on application is made on behalf of the person against whom the order has been passed. On the application of such persons, final appellate authority can entertain the revision assailing the validity of the order passed either in original or in exercise of appellate jurisdiction. [Para 10
(2) Constitution of India -- Art. 226 -- maintainability of writ petition -- initiation of action or issue of show cause notice without jurisdiction besides being illegal -- writ petition against such action is maintainable.
¼1½ iqfyl fofu;e ¼e-iz-½ && iSjk 270¼1½ rFkk 262 && iSjk 270¼1½ ds v/khu Loizsj.kk ls iqujh{k.k dh ‘kfDr && vafre izkf/kdkjh }kjk iSjk 262 ds v/khu vihy esa ikfjr vius gh vkns‘k ds fo:) iz;qDr ugha dh tk ldrh && vkf{kIr vkns‘k djus okys izkf/kdkjh ls ofj"B izkf/kdkjh }kjk iz;qDr dh tk ldrh gSA izR;FkhZ Ø-3 vuq‘kklfud izkf/kdkjh gS ftlus] vkns‘k fnukad 28-7-1998 ds vuqlkj] nks osruo`f);k¡ lap;h izHkko ls jksdus dh ‘kkfLr vf/kjksfir djrs gq, ;kph ds fl:) vkns‘k ikfjr fd;k gSA ;g Hkh fookfnr ugha gS fd ;kph us ml vkns‘k ij vk{ksi djrs gq, izR;FkhZ Ø-2 ds le{k vihy dhA izR;FkhZ Ø-2 us mls ukeatwj djrs gq, rFkk vuq‘kklfud izkf/kdkjh dk vkns‘k vfHkiq"V djrs gq, vkns‘k fnukad 18-2-1999 }kjk vihy fofuf‘pr dhA vihy izkf/kdkjh }kjk vkns‘k ikfjr fd, tkus ds i‘pkr~ mlh fnukad vFkkZr~ 18-2-1999 dks mlds }kjk dkj.k crkvks lwpuk] ftlesa dgk x;k gS fd dsoy ‘kkfLr c<+kus ds fy, Loizsj.kk ls iqujh{k.k dh ‘kfDr D;ksa iz;qDr ugha dh tk,] tkjh dh tkuk mfpr ugha gSA dgk x;k gS fd vuq‘kklfud izkf/kdkjh }kjk vf/kjksfir naM vkjksiksa dh xaHkhjrk ds vuq:i ugha gSA rRi‘pkr~ 16-3-1888 dks izR;FkhZ Ø-2 }kjk ;kph dks lsok ls gVkus dh izLrkfor ‘kkfLr ds fy, ,d vU; dkj.k crkvks lwpuk tkjh dh xbZA bu nksuksa lwpukvksa ij izLrqr ekeys esa vk{ksi fd;k x;k gSA ¼iSjk 6 vfHkfu/kkZfjr % iSjk 270 ds [kaM ¼1½ ds ikB ek= ls izdV gS fd Loizsj.kk ls iqujh{k.k dh ‘kfDr iz;qDr djus okyk izkf/kdkjh vkns‘k djus okys izkf/kdkjh ls ofj"B gksuk vko‘;d gSA izLrqr ekeys esa izR;FkhZ Ø-3 us vkns‘k ikfjr fd;k ftl ij vihy izkf/kdkjh vFkkZr~ izR;FkhZ Ø-2 ds le{k vk{ksfir fd;k x;kA vihy izkf/kdkjh vFkkZr~ izR;FkhZ Ø-2 us 18-2-1999 dks vafre vkns‘k ikfjr fd;k] rRi‘pkr~ mls iqfyl fofu;e ds iSjk 270 ds [kaM ¼1½ ds v/khu ‘kfDr dk vkJ; ysus dh vf/kdkfjrk ugha gSA e-iz- iqfyl fuf;e ds iSjk 270 dk [kaM ¼2½ mu ekeyksa ls lacaf/kr gS ftlesa ml O;fDr dh vksj ls vkosnu fd;k tkrk gS ftlds fo:) vkns‘k ikfjr fd;k x;k gSA ,sls O;fDr;ksa ds vkosnu ij vafre vihy izkf/kdkjh] ewy ;k vihyh vf/kdkfjrk iz;qDr dj ikfjr fd, x, vkns‘k dh fof/kekU;rk ij vk{ksi djus dk iqujh{k.k vkosnu xzg.k dj ldrk gSA ¼iSjk 10 ¼2½ Hkkjr dk lafo/kku && vuq- 226 && fjV ;kfpdk pykus ;ksX; gksuk && dkjZokbZ dk vkjaHk fd;k tkuk ;k dkj.k crkvks lwpuk dk tkjh fd;k tkuk voS/k gksus ds vfrfjDr vf/kdkfjrk jfgr&,slh dkjZokbZ ds fo:) fjV ;kfpdk pykus ;ksX; gSA ¼1998½8 ,l lh lh 1 vuqlfjrA ¼iSjk 12
1. This petition has been filed challenging the show cause notice Annexure A-3 dated 18.2.1999 and the show cause notice Annexure A-4 dated 16.3.1999 issued by respondent No.2 to the petitioner. It is urged that issuance of such show cause notice by the appellate authority after passing the order in appeal is illegal and without jurisdiction.
2. It is the case of the petitioner that he was served with a charge-sheet and after holding regular departmental enquiry the order of penalty Annexure A-1 dated 28.7.1998 was passed by which penalty of withholding of two increments with cumulative effect has been ordered by respondent No.3. Petitioner has filed an appeal challenging the order of respondent No.3 before respondent No.2. The appellate authority has rejected the appeal vide order dated 18.2.1999 Annexure A-2 affirming the order of respondent No.3. On the same date, i.e., 18.2.1999, a show cause notice was issued to petitioner asking reply from him. In the notice it is mentioned that "I deem it proper to exercise the revisional jurisdiction on account of saddling the petitioner with penalty which is not commensurate with the gravity of charges".
3. After about three months, a show cause notice has also been issued by the appellate authority as per Annexure A-4 dated 16.3.1999 asking reply for enhancement of the penalty as removal from service in place of withholding of two increments with cumulative effect. The petitioner has filed this petition challenging the tenability of the show cause notice Annexure A-3 and A-4 issued by respondent No.3. It is urged by the counsel for the petitioner as per para 270 of the M.P. Police Regulations, after deciding the appeal by the appellate authority, having no competence to issue the notice for exercising the suo motu revisional jurisdiction in the matter. It is further urged that notice as issued by the respondent No.2 is wholly without jurisdiction and illegal, therefore, the action as proposed by respondent No.2 is unwarranted and bad in law.
4. Counsel for the respondents has filed their return. In the return, it is said that the order passed by the disciplinary authority inflicting the penalty of withholding of two increments with cumulative effect was not proper punishment commensurate to the gravity of the charges which is found proved in the departmental enquiry. However, the appellate authority while rejecting the appeal has also exercised the revisional jurisdiction by issuing a show cause notice Annexure A-3 and A-4 to the petitioner for enhancement of the penalty. It is urged that the powers as exercised by the appellate authority is inconformity with the provisions of para 270 of the M.P. Police Regulation, therefore, interference by this Court is not called for.
5. Counsel for respondents has also raised the question of maintainability of the petition; it is urged, petition tiled challenging the show cause notice, is not maintainable and liable to be dismissed.
6. I have heard the learned counsel for the parties and perused the record. On perusal of the record, it is not in dispute that the respondent No.3 is the disciplinary authority who has passed the order inflicting penalty of withholding of two increments with cumulative effect against the petitioner as per order dated 28.7.1998. It is also not in dispute that petitioner has preferred an appeal challenging such an order before respondent No.2. The respondent No.2 decided the appeal vide order dated 18.2.1999 rejecting it, and affirming the order of the disciplinary authority. After passing of the order by the appellate authority, issuance of show cause notice by him on the same date, i.e., 18.2.1999, stating that why the suo motu revisional powers should not be exercised merely for enhancement of the penalty, is not proper. It is said that punishment imposed by the disciplinary authority is not commensurate to the gravity of the charges. Thereafter another show cause notice for proposed penalty was issued by responden
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