Appellate authority in disciplinary proceeding acts in quasi­judicial capacity and order passed has to be reasoned one: Chhattisgarh High Court.
The appellate authority in disciplinary proceeding acts in quasi­judicial capacity and order passed has to be reasoned one and showing application of mind to the question raised by the appellant and if it is not done, the appellate order is vitiated. The authority is bound to assign reasons so as to enable the Court reviewing its decision to ascertain as to whether he had applied his mind to the relevant factors which the rule required to do. This was held by the Hon’ble Justice Shri Sanjay K. Agrawal in the case of Tikam Chand Thakur Vs. State of Chhattisgarh, through its Secretary, Department of Home (Police) [Writ Petition (S) No.6065 of 2010] on the 26th of July before the Hon’ble High Court of Chhattisgarh at Bilaspur. The brief facts of the case are, The petitioner was subjected to departmental proceedings and ultimately, by order dated 15.1.2009 (Annexure P­2) the petitioner was inflicted with penalty of removal from service, against which, he preferred appeal before the appellate authority/Deputy Inspector General of Police, Chhattisgarh Armed Force, Bhilai Area, Dist. Durg. The appellate authority by the impugned order dated 21.6.2010 (Annexure P­1) dismissed the appeal preferred by the petitioner by brief and unreasoned order, which has been called in question by the petitioner in this writ petition. The counsel for the petitioner submits that, appeal preferred by the petitioner was required to be considered and disposed of by the appellate authority in accordance with Rule 27 (2) of the Chhattisgarh Civil Services (Classification, Control &amp; Appeal) Rules, 1966 , which has not been done in this case and in one line, the petitioner’s appeal has been dismissed, which is not in consonance with Rule 27(2) of the Rules of 1966, as such, the order of the appellate authority deserves to be set-aside and the matter be remitted to the appellate authority for considering the appeal of the petitioner afresh in accordance with Rule 27(2) of the Rules of 1966. Per contra, the counsel for the respondent supports the order and deemed it just and fair. The learned court heard the submissions of both the parties and observed that, the present appeal is governed by the regulation 262 of the police regulations. Regulation 262 of the Police Regulations is silent about the procedure to be followed while considering the appeal, but how the appeal has to be decided and whether aid and assistance can be taken from the provisions contained in the Rules 1966. In such a situation, the court relied on the judgement in the case of, Mahesh Kumar Shrikishan Tiwari v. State of Madhya Pradesh and Ors 1985 MPLJ 516, wherein it was held that, “the applicability of the Control and Appeal Rules is not altogether excluded, where the Police Regulations are silent, the provision of Control and Appeal Rules would apply in departmental enquiries against subordinate police staff.” The court also relied on the judgement in Narinder Mohan Arya v. United India Insurance Co. Ltd. and others [(2006) 4 SCC 713], wherein, “Even if the appellate order is in agreement with that of the disciplinary authority it may not be speaking order, but the authority passing the same must show that there had been proper application of mind in compliance with the requirement of law while exercising his jurisdiction particularly when the rules required application of mind on several factors and several contentions had been raised and he was bound to assign reasons so as to enable the Court reviewing its decision to ascertain as to whether he had applied his mind to the relevant factors which the rule required to do.”
1AFRHIGH COURT OF CHHATTISGARH BILASPURWrit PetitionNo.60610Tikam Chand Thakur S o. Late Johan Singh Thakur agedabout 49 years R o. Village Nargi P.O.­Badgaon Tahsil & Thana Daundilohara Distt.Durg­­­­ PetitionerVersus 1.State of Chhattisgarh through its Secretary Departmentof HomeD.K.S. Bhawan Raipur2.Department of Police through Director General ofPolice Police Head Quarters Civil Lines Raipur3.Dy.Inspector General of Police Chhattisgarh ArmedForce Bhilai Area Distt.Durg4.Commandant 5th Battalion C.G. Armed Forces Jagdalpur Distt.Bastar5.Superintendent of Police Special Task Force Baghera Distt.Durg­­­­ RespondentsFor Petitioner : Mr.Varun Sharma Advocate For Respondents State : Mr.Ravi Bhagat Dy.G.A.Hon ble Shri Justice Sanjay K. AgrawalOrder on Board 26.7.20211.Proceedings of this matter have been taken­up throughvideo conferencing. 2.The petitioner was subjected to departmental proceedingsand ultimately by order dated 15.1.2009dismissed the 2appeal preferred by the petitioner by brief andunreasoned order which has been called in question bythe petitioner in this writ petition. 3.Mr.Varun Sharma learned counsel for the petitioner would submit that appeal preferred by the petitioner wasrequired to be considered and disposed of by theappellate authority in accordance with Rule 27ofthe Chhattisgarh Civil ServicesRules 1966which has not been done in this case and inone line the petitioner s appeal has been dismissed which is not in consonance with Rule 27(2) of the Rulesof 1966 as such the order of the appellate authoritydeserves to be set­aside and the matter be remitted tothe appellate authority for considering the appeal ofthe petitioner afresh in accordance with Rule 27(2) ofthe Rules of 1966.4.On the other hand Mr.Ravi Bhagat learned DeputyGovernment Advocate for the respondents State wouldsupport the impugned order. 5.I have heard learned counsel for the parties andconsidered their rival submissions made hereinabove andalso went through the records with utmostcircumspection.6.It is true that the petitioner is governed by theChhattisgarh Police Regulations and his appeal is 3governed by Regulation 262 of the Police Regulations which states as under:­“262. Appeal. Every officer against whom anorder may be passed under Regulation 214 and whothinks himself wronged thereby shall be entitledto prefer an appeal against such order to theauthority immediately superior to the officerwho passed the order of punishment and if theappeal is from an officer of the rank ofInspector or of an equivalent rank and theappeal relates to an order that that referred toin sub­headof Regulation 214 and isrejected by the appellate authority he mayprefer a second appeal to the State Government.”7.Regulation 262 of the Police Regulations is silent aboutthe procedure to be followed while considering theappeal but how the appeal has to be decided and whetheraid and assistance can be taken from the provisionscontained in the Rules 1966. 8.The Madhya Pradesh High Court in the matter of MaheshKumar Shrikishan Tiwari v. State of Madhya Pradesh andOrs.1held that the applicability of theControl and Appeal Rules is not altogether excluded where the Police Regulations are silent the provisionof Control and Appeal Rules would apply in departmentalenquiries against subordinate police staff. 9.There is no express provision with regard to the mannerof hearing the appeal therefore following theprinciple of law laid down by the Madhya Pradesh HighCourt in Mahesh Kumar Shrikishan TiwariRule 27of the Rules of 1966 can be taken aid of for1 1985 MPLJ 516 4consideration of appeal. 10.Rule 27 of the Rules of 1966 provides as under:­“27. Consideration of appeal.­(1) In the case ofan appeal against an order of suspension theappellate authority shall consider whether inthe light of the provisions of rule 9 and havingregard to the circumstances of the case theorder of suspension is justified or not andconfirm or revoke the order accordingly.In the case of an appeal against an orderimposing any of the penalties specified in rule10 or enhancing any penalty imposed under thesaid rule the appellate authority shallconsider ­(a) whether the procedure laid down in theserules has been complied with and if not whether such non­compliance has resulted inthe violation of any provisions of theConstitution of India or in the failure ofjusticewhether the findings of the disciplinaryauthority are warranted by the evidence on therecords andwhether the penalty or the enhancedpenalty imposed is adequate inadequate orsevere and pass orders­(i) confirming enhancing reducing orsetting aside the penalty or(ii) remitting the case to the authoritywhich imposed or enhanced the penalty or toany other authority with such direction asit may deem fit in the circumstances of thecase....”11.It is well settled position of law that theappellate authority in disciplinary proceeding acts inquasi­judicial capacity and order passed has to bereasoned one and showing application of mind to thequestion raised by the appellant and if it is not done the appellate order is vitiated.it is quite vivid that appeal preferred by thepetitioner has not been considered by the appellateauthority in the light of clausetoof Rule23 SCC 46935 SCC 34044 SCC 713 627(2) of the Rules of 1966 and dismissed the appeal byunreasoned and non­speaking order on 21.6.2010 whichought to have been considered by the appellate authorityin the light of clausetoof Rule 27(2) of theRules of 1966. 15.As a fallout and consequence of the aforesaiddiscussion the impugned order dated 21.6.2010passed by appellate authority is hereby set­aside.Appeal filed by the petitioner herein is restored to thefile of appellate authority. The appellate authority isdirected to consider the appeal of the petitioner inaccordance with Rule 27of the Rules of 1966 within60 days from the date of receipt of a copy of this orderand will decide the same after hearing the petitionerand other side and pass a reasoned and speaking order strictly in accordance with law. The petitioner is atliberty to file additional submission before theappellate authority. 16.The writ petition is allowed to the extentindicated hereinabove. No order as to cost(s). Sd ­ JudgeB ­ 