IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE th ON THE 13 OF JULY, 2023 WRIT PETITION No. 5989 of 2014 BETWEEN:-

SANJEEV KUMAR SINGH RATHORE S/O R.K.SINGH RATHORE, AGED-40 YEARS, OCCUPATION: EX. CONSTABLE 719 13TH BN. GWALIOR R/O 84 QUARTERS Q.NO.18 TILAK NAGAR SINDHI COLONY LASHKAR GWALIOR (MADHYA PRADESH)

.....PETITIONER (BY SHRI PRASHANT SHARMA- ADVOCATE)

AND

1. STATE OF MADHYA PRADESH THROUGH PRINCIPAL SECRETARY DEPARTMENT OF HOME M.P. GOVT. VALLABH BHAVAN BHOPAL (MADHYA PRADESH)

2. DIRECTOR GENERAL OF POLICE POLICE HEADQUARTERS JAHANGIRABAD, BHOPAL (MADHYA PRADESH)

3. COMMANDANT 13TH BATTALIION SAF GWALIOR (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI S.S. KUSHWAH- GOVERNMENT ADVOCATE)

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This petition coming on for hearing this day, Hon'ble Shri Justice Milind Ramesh Phadke passed the following:

ORDER

1. The present petition under Article 226 of the Constitution of India has been preferred against the order dated 15.01.2009 passed by respondent no.3, whereby punishment of discharge from service was inflicted upon the petitioner. Against the said order the petitioner had filed an appeal to DIG, SAF, Gwalior, which was also dismissed and the order passed by respondent no.3 was affirmed vide order dated 15.04.2010. The petitioner is further aggrieved by order dated 05.06.2010, whereby the appeal preferred before the Inspector General, SAF, Gwalior was also dismissed and, thereafter, the mercy petition preferred against the said order was also dismissed vide order dated 12.12.2013, which is also under challenge.

2. Brief facts of the case are that the petitioner was appointed on the post of Constable GD, Second Battalion, SAF, Gwalior on 20.04.1994 and in the year, 2008 he was transferred from second battalion, SAF, Gwalior to 13^th Batallion, SAF, Gwalior.

3. As the petitioner was suffering from some ailment he was absent from 25.10.2008 to 29.10.2008 from his duties and as he could not perform his duties assigned by respondent no.3, he marked his unauthorized absence and in pursuance thereof issued a charge-sheet to the petitioner.

4. The petitioner submitted his reply to the charge-sheet, but without considering the reply of the petitioner they have proceeded with the enquiry and later on after conclusion of the enquiry, all the charges levelled against the petitioner were found to be proved. The report of the enquiry officer was submitted before the disciplinary authority. On the basis of the enquiry report submitted by the enquiry officer, the impugned order of punishment was passed by the disciplinary authority.

5. Against the said order, the petitioner preferred an appeal before the DIG, SAF, Gwalior which was dismissed and the order passed by disciplinary authority was affirmed vide order dated 15.04.2010. Thereafter, the petitioner preferred a second appeal before the Inspector General, SAF, Gwalior against the order dated 15.04.2010 passed in first appeal which was also dismissed, thereafter, the petitioner filed mercy petition, but it also received the same fate and the order of dismissal of the petitioner from service was affirmed. Hence the present petition. 6. Learned counsel for the petitioner argued that the impugned orders Annexure P/1 to P/5 passed by respondent authorities are absolutely illegal and contrary to law, therefore, they are liable to be quashed. It was further argued that the disciplinary authority has not applied his own mind prior to passing of impugned order and has considered the past service record of the petitioner and had passed the order of removal of service which is absolutely illegal and not sustainable in the eyes of law. It was further argued that the enquiry officer while conducting the proceedings had not followed the principles as laid down by the Hon'ble Apex Court in the matter of Bhagatram vs. Himachal Pradesh, AIR 1983 SC 454, wherein the Hon'ble Apex Court had held