1987 Supreme(MP) 435

IN THE HIGH COURT OF MADHYA PRADESH
GULAB C. GUPTA, J.
State of M.P. – Appellant
Vs.
Prahlad – Respondent
S. A. No. 131 of 1987 (I)
Decided on : 11-11-1987

Headnote:Civil Services (Classification, Control and Appeal) Rules, 1966 (M.P.) – R.29 (1) – power of review to enhance punishment – cannot be exercised after expiry of period of six months.

        Short Note

       1. Respondent admittedly was employed as a constable and subjected to disciplinary inquiry on charges of consuming liquor and lighting with another constable. The superintendent of police on consideration of material collected during the inquiry inflicted punishment of reduction to the minimum of pay scale for a period of three years, by his order dt.15 – 1 – 83. The respondents appealed against the aforesaid order to the Deputy – Inspector General of Police, Indore challenging the said punishment on various grounds including the ground of violation of principles of natural justice. The appellate Authority felt that the punishment imposed on the respondent was not proper and deserved enhancement. He, therefore, served a show cause notice on the respondent requiring his explanation why the punishment inflicted upon him be not increased. After consideration of the reply the Dy. Inspector General of Police by his order dt.30th July, 1983 ordered his compulsory retirement. Since the appeal against the said order failed, the respondent filed a civil suit praying for declaration that the order was illegal and void. One of the submissions of plaintiff was that the D.I.G. of Police had no authority to pass the impugned order as the authority given to him for enhancing the penalty can be exercised only within the period of six months from the date of the order passed by the disciplinary authority. The learned Trial Judge found that there was no breach of principles of natural justice or rules requiring reasonable opportunity to defend. The learned trial Judge further held that though the power of enhancing the punishment was exercised after six months, no prejudice was caused to the respondent and, therefore, the order was legal and valid. That is how the suit was dismissed. The learned lower Appellate Court confirmed the finding that the order passed by the Supdt. of Police was passed in accordance with rules. The learned lower appellate Court, however, held that the power to review the punishment cannot be exercised by the Appellate Authority after expiry of 6 months of the date of the order. That is how it has been held that order of compulsory retirement was illegal and void and necessary relief given.

       2. Held: The only question requiring consideration of this Court is whether the DIG of Police can enhance the punishment exercising review powers, Rule 29 (1) of the M.P. Civil Services (Classification, Control & Appeal) Rules, 1966. A bare reading of this Rule indicates that the Appellate Authority may within six months of the date of the order proposed to be reviewed, enhance the penalty imposed by the order. The submission of the learned counsel for the appellant is that the Rule gives discretion to the Appellate Authority to exercise its power within six months and must, therefore, be held directory not mandatory. The submission appears to be that in such a case real test to be applied would be the test of prejudice caused to the respondent and not the breach of Rule itself. This Court is unable to find any substance in this submission. Vesting such a power in the Appellate Authority is not the normal procedure. Indeed review procedure as known in general Civil Law is the procedure available to the Authority passing the order itself. Any other authority may exercise such a power only in those cases where there is a specific provision in this behalf. Since there is a specific provision in this behalf in this Rule, the D.I.G. of Police will have to find his authority in this Rule itself. A plain reading of this Rule indicates that it fixes outer limit of six months to be calculated from the date of the order of the disciplinary authority when the power may be exercised by the Appellate Authority. The use of word may only indicates that it is not compulsory for him to exercise this power even within the period of six months. The Rule does not vest in him any power after the expiry of period of six months. In other words, the D.I.G. of Police ceased to be Reviewing Authority for reviewing the punishment after the period of six months of the order passed by the Supdt. of Police. Under the circumstances the learned lower Appellate Court made no mistake in holding that the impugned order of compulsory retirement was without any authority. The learned counsel has not been able to show any decision of any Court which takes a contrary view of the matter to support his submission.

       Appeal dismissed.