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T.C. Sharma Vs. I.G. of Prisons and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in(1977)IILLJ444MP
AppellantT.C. Sharma
Respondenti.G. of Prisons and ors.
Cases ReferredIn Tirath Singh v. Bachittar Singh
Excerpt:
.....in observance of the security rules enabling 26 prisoners to..........that is, satisfaction of his council of ministers on whose aid and advice the president or the governor generally exercises all his powers and functions. the decision of any minister or officer under rules of business made under any of these two articles 77(3) and 166(3) is the decision of the president or the governor respectively. these articles did not provide for any delegation. therefore, the decision of minister or office under the rules of business is the decision of the president or the governor.having regard to the position of the governor under tin constitution, we do not accept the argument that the governor in exercising he power under sub-clause (iv) of clause (1) of rule 29 acts as a persona designata or in his individual, discretion. the power of the governor under.....
Judgment:
ORDER

G.P. Singh, J.

1. By this petition under Article 226 of the Constitution the petitioner challenges an order dated 1lth October, 1974 passed by the Inspector General of Prisons, dismissing the petitioner from service.

2. The petitioner, at the relevant time, was in service of the Government of Madhya Pradesh as a Deputy Jailor. He was incharge Jailor of Alirajpur jail. On 1st June, 1972, twenty six prisoners were able to make good their escape from the jail between 12 noon and 1 p.m.. There was a departmental enquiry against the petitioner. Three charges were levelled against him in that enquiry. The first charge was that there was failure to discharge his duties as incharge Jailor including lack of supervision leading to laxity in observance of Security Rule. The second charge was that the petitioner never checked and verified that the gates of the jail ware locked in accordance with the Rules. The third charge was that the petitioner sent Guard Jairam, who was on duty at the gate, for his personal work without replacing another guard in his place. The departmental enquiry was conducted by the Superintendent, District jail, Alirajpur. The inquiry officer held that the charges Nos. 1 and 2 were proved against the petitioner. On the basis of the report of the inquiry officer, a show cause notice proposing the punishment of dismissal was issued by the then Inspector Genral of Prisons, Shri L.S. Naidu. The Petitioner submitted his explanation. Shri Naidu, by his order dated 26th November, 1973, held that charges Nos. 1 and 2 were proved against the petitioner. Shri Naidu was, however, of opinion that having regard to the petitioner's past record, dismissal or removal from service would be too severe a punishment. Shri Naidu, therefore, imposed upon the petitioner the punishment of reduction to one lower stage in the time scale of pay for three years without affecting future increments. After retirement of Shri Naidu, Shri S.P. Singh became the Inspector General of Prisons. On 30th March, 1974 a notice was issued by Shri Singh to the petitioner to show cause why the previous order imposing upon him the punishment of reduction to one lower stage in the time scale of pay be not reviewed and the punishment of dismissal may not be imposed. Thereafter, on 11th October, 1974 the previous order of punishment was reviewed and the punishment of removal from service was imposed and the petitioner was removed from service from 15th October, 1974. It is this order which the petitioner challenges in this petition.

3. The provision for review of an order imposing punishment is made in Rule 29 of the Madhya Pradesh Civil Service (Classification, Control and Appeal) Rules, 1966. Clause (1) of the said rule which is relevant for our purposes reads as follows:

29. (1) Notwithstanding anything contained in these rules except Rule 11-

(i) the Governor; or

(ii) the head of a department directly under the State Government, in the case of a Government servant serving in a department or office, (not being the Secretariate), under the control of such head of a department, or

(iii) the appellate authority, within six months of the date of the order proposed to be reviewed, or

(iv) any other authority specified in this behalf by the Governor by a general or special order, and within such time as may be prescribed in such general or special order; may at any time, either on his of its own motion or otherwise call for the records of any inquiry and review any order made under these rules or under the rules repealed by Rule 34 from which an appeal is allowed but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the commission where such consultation is necessary, and may-

(a) confirm, modify or let aside the order; or

(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or

(c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or

(d) pass such other orders as it may deem fit;

Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in Clause (v) to (ix) of Rule 10 or to enhance the penalty imposed by the order souht to be reviewed to any of the penalties specified in these clauses, no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 14 and after giving a reasonable opportunity to the Government servant concerned of showing cause against the penalty proposed on the evidence adduced during the inquiry and except after consultation with the Commissioner where such consultation is necessary:

Provided further that no power to review shall be exercised by the head of department unless:

(i) the authority which made the order in appeal or,

(ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.

4. Learned Counsel for the petitioner first contends that the Inspector General of Prisons had no jurisdiction to review any order passed by his predecessor in office. The argument is that the power of review conferred on the head of a department by Clause (1) of Role 29 is curtailed by the second proviso. It is true that the head of a department, because of the second proviso, cannot exercise the power of review unless the authority which made the order in appeal, or the authority to which an appeal would have laid where no appeal has been preferred against the order under review, u subordinate to him. in the instant case the original order was made by the Inspector-General of Prisons. No appeal was filed against this order. But an appeal could have been filed to the State Government. The State Government ii not subordinate to the Inspector-General of Prisons. Therefore, the Inspector-General of Prisons hid no jurisdiction to review any order of his predecessor under the power conferred on him by Rule 29(1)(ii). However, the Inspector General of Prisons was specifically authorised to exercise the power of review by an order of the State Government passed on 1st March, 1974. It appears that a reference was made to the State Government for review of the order and the Government wrote back to the Inspector General of Prisons that he was directed to review the order and to pass necessary orders. This order of the State Government is Annexure Rule 1 The order is issued to the Inspector General of Prisons It says 'that in accordance with the proposal nude by the Inspector General Prisons, the State Governments directs that case be reviewed and proper orders be passed and the Government be informed'. Now, Sub-clause (v) of Clause (1)of Rule 29 empowers 'any other authority specified in this behalf by the Governor by a general or special order' to review an order of punishment. The Governor can under this provision, authorise any authority by special order to review any particular order. The ban of the second proviso does not apply to this clause. It only applies to Sub-clause (ii) of Clause (1) of Rule 29. In our opinion, the State Government authorised the Inspector General of Prisons under Sub-clause (iv) of Clause 1 of Rule 29 by order Annexure Rule 1 to review the previous order of punishment and to pass proper orders in the matter. The Inspector General of Prisons, therefore, got the jurisdictions to review the original order of punishment by virtue of this special order.

5. Bat then it is argued by the learned council for the petitioner that the authorisation contemplated under Sub-clause (iv) of Clause (1) of Rule 29 must be an authorisation by the Governor and as in the instant case the Governor has not authorised the Inspector General of Prisons, it cannot be said that there is a special order within the meaning of that sub-clause. The learned Counsel further argued that the Governor in passing a general or special order under Sub-clause (iv) acts as a persona designate. In our opinion, there is no merit in this connection. In the Constitutional set up that we have, the President as well as the Governor is the Constitutional or formal head. Except in cases expressly requiring the Governor to exercise his power in his discretion, he has to act on the aid and advice of his Council of Ministers. The orders issued in the name of the Governor are the orders of the State Government. Under Section 3(60) of the Gentrai Clauses Act, 1897, the State Government has been defined to mean the Governor, as respects anything done after the commencement of the Constitution. The executive action of the Government of a State is transacted in accordance with the Rules of Business made by the Governor which allocate among Ministers the business of the Government Many orders which are issued in the name of the Governor ate never, in fact, approved by him as they are passed by other authorities acting under the Rule of Business. The Constitutional position in this respect has been settled by the Supreme Court in Samsher Singh v. State of Punjab : (1974)IILLJ465SC . Their Lordships, in dealing with the Constitutional position of the President and Governor, observed at follows:

The President as well as the Governor is the Constitutional or formal bead. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in, the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under rules of business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or office under the rules of business is the decision of the President or the Governor.

Having regard to the position of the Governor under tin Constitution, we do not accept the argument that the Governor in exercising he power under Sub-clause (iv) of Clause (1) of Rule 29 acts as a persona designata or in his individual, discretion. The power of the Governor under Sub-clause (iv) would be exercisable by him only with the aid and advice of his Council of Ministers and in accordance with the Rules of Business. If there is in fact an order of the State Government according to the Rules of Business, that order would be an order of the Governor for the purpose of Sub-clause (iv). In the instant case Annexure R is an order of the State Government. It is not contended that that order was not passed in accordance with the Rules of Business. It has therefore, to be held that Annexure R1 is the proper order of the State Government and this will have, effect as an order of the Governor for purposes of Sub-clause (iv). In this view of the matter, there is a valid special order authoring the Inspector General of Prisons to review the original order of punishment and the order passed in review was not without jurisdiction.

6. It was then contended that the Inspector General of Prisons when be tentatively decided to impose the penalty of removal should have held a fresh Inquiry under Rule 14 of the Rules. For this submission the learned Counsel relied upon the first proviso to Clause (1) of Rule 29. Rule 10 of the Rules classifies penalties into two groups; minor penalties and major penalties. For imposing major penalties a detailed procedure for holding an inquiry consistent with Article 311 of the Constitution is prescribed by Rule 14. Procedure for imposing minor penalties is prescribed by Rule 16. Under Rule 16, the disciplinary authority has only to inform the Government servant concerned of the proposal to take action against him and of the imputations of misconduct or misbehaviour alleged against him. The Government servant is given a reasonable opportunity of making representation against the proposal. An inquiry as contemplated by Rule 14 is not obligatory for imposing minor penalties, but the disciplinary authority may in its discretion hold an inquiry under Rule 4 even in cases where only a minor penalty is proposed to be imposed. It will thus be seen that an order relating to penalty which may come up for review under Rule 29(1) may be an order in which a full inquiry has already been held in accordance with Rule 14, or it may be an order in which no such inquiry has been held. Now, in those cases where an inquiry has already been held it would be futile to hold another inquiry of the same nature and to repeat the entire process again. In our opinion, the words in the proviso to Rule 29(1) 'no such penalty shall be imposed except after as inquiry in the manner laid down in Rule 14' will be applicable only to such cases where, the order under review was not passed after holding an inquiry in accordance with Rule 14. For example, if on a charge of misconduct a minor punishment has been awarded without holding an inquiry under Rule 14, the reviewing authority will not in exercise of its power of review impose a major penalty whithout holding an inquiry under Rule l4. But if a full inquiry has. already been held, we see no reason why, the same thing should be repeated over again while, exorcising the power of review. Learned Counsel for the petitioner argued. that the language of the proviso it plain and, therefore, we should hold that an inquiry must in all oases be held before imposing any major penalty irrespective of whether an inquiry was held before making the order under review. It is seldom that the language of a statute is so plain that the Court cannot avoid adopting a construction which leads to absurd or unjust result. As stated by Lord Reid in Kammins Ballrooms v. Zenith Investments [1970] 2 All E.R. 871, p. 874, 'if the words of an Act are so inflexible that they are incapable in any context of having any but one meaning, then the Court must apply that meaning, no matter how unreasonable the result. Bat such cases are rare because the English language is a flexible instrument.' The language employed in the proviso to Rule 29(1) is not inflexible. The proviso does not say that even where an inquiry under Rule 14 was held before passing the order under review, an inquiry must be held by the reviewing authority if it proposes to impose a major penalty. The language not being that explicit, we must endeavour to so construe the proviso as to avoid reaching an absurd or unreasonable result. We must therefore, limit the requirement of inquiry under Rule 14 to those cases where no such inquiry was held before passing the order sought to be reviewed.

7. In Tirath Singh v. Bachittar Singh : [1955]2SCR457 , the Supreme Court construed Section 99 of the representation of the People Act, 1951 (as it stood prior to amendment by Act 27 of 1957) which authorised tht Election Tribunal at the conclusion of the trial to name all persons who were guilty of corrupt practice. The power was exercisable subject to a proviso which required that 'no person shall be named unless-(a) he has been given notice to appear before the Tribunal and show cause why he should not be so named; and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who has already been examined and of calling evidence in his defence and of being heard.' The contention before the Supreme Court was that even parties to the election petition were entitled to the benefit of the proviso as the words 'no person shall be named', interpreted in literal sense included the parties. The Supreme Court in rejecting this contention pointed out that 'if the contention is to be accepted, then the result will be that even though there was a foil trial of the charges set out in the petition, if the Tribunal is disposed to hold them proved it has first to give notice of the finding which it proposes to give, to the parties, and hold a fresh trial of the very matters that had been already tried. That is an extraordinary result, for which it is difficult to discover any reason or justification.' The principle applied in this case is applicable to the instant case. The first proviso to Rule 29(1) must be given a reasonable construction. On a proper construction of the language of the proviso, the reviewing authority is not obliged to hold a fresh inquiry under Rule 14 if such an inquiry had already been held before passing the order under review.

8. The learned Counsel then submitted that the Inspector General of Prisons in the order passed after review did not give any reasons for enhancing the punishment. The learned Counsel argued that when the Inspector General was taking a different view from that taken by his predecessor, it was his duty to state the reasons why he took a different view. This argument most be rejected because the impugned order passed in review discloses the reasons for awarding a more severe punishment. The petitioner was incharge Jailor. Charges Nos. 1 and 2 were proved against him. The petitioner's failure to discharge his duties as Incharge Jailor led to the laxity in observance of the Security Rules enabling 26 prisoners to escape. This was quite a serious matter. The punishment of redaction to the one lower stage in the time scale of pay for three years initially awarded was on the face of it too mild a punishment having regard to the gravity of the charges. This is the reason why the Inspector General of Prisons reviewed the order of his predecessor and imposed the punishment of removal from service. The reasons for reviewing the earlier order are obvious.

9. The learned Counsel then contended that the petitioner ha! been punished twice for the same offence and that his rights under Article 20(2) of the Constitution have been violated. There is absolutely no merit in this contention. Article 20(2) provides that 'no person shall be prosecuted and punished for the same offence more than once.' When a civil servant is depart-mentally dealt with and is departmentally punished for a certain act of misconduct, it cannot be said that he has been prosecuted and punished for an offence within the meaning of Article 20(2) of the Constitution. Moreover, the punishment of reduction to one lower stage in the time scale of pay initially awarded has been set aside by the order under review and the punishment of removal from service has been substituted in its place. It cannot, therefore, be said that two punishments have been imposed on the petitioner for the same act of misconduct. The only punishment awarded as a result of the order of review is removal from service.

10. The petition fails and is dismissed with costs. Counsel's fee Rs. 100. The outstanding amount of the security deposit, if any, shall be refunded to the petitioner.


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