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Balkishan Chaturvedi Vs. the Chief Secretary, Govt. of Bhopal and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Petn. Case No. 1 of 1961
Judge
Reported inAIR1963MP216
ActsStates Reorganisation Act, 1956 - Sections 115(3), 116(1) and 116(2); Constitution of India - Article 311 and 311(2)
AppellantBalkishan Chaturvedi
RespondentThe Chief Secretary, Govt. of Bhopal and anr.
Appellant AdvocateJ.P. Gupta, Adv.
Respondent AdvocateR.S. Bajpai, Dy. G.A.
DispositionPetition dismissed
Cases ReferredSouza v. State of Madhya Pradesh
Excerpt:
- - inprinciple, even where something is not expressly providedin the statute or the rule, it may have to be given tothe party likely to be affected by the order, if on thegrounds of reasonableness or fair-play it will materiallyhelp him in making himself better understood by hissuperiors......in the state of madras could punish him at a time when he was under the control of another state government. on the strength of section 116(2) of the act the high court held that the authority in the state of madras was competent to do this. the argument seems to be that, since it was held that for the purposes of proceedings initiated while the officer was working in the state of madras he was still under the jurisdiction of the authority in that state, the petitioner should be treated as continuing to be under the control of the state of rajasthan. but we are not dealing with proceedings started against the officer in the state of rajasthan before 1-11-1956; here the proceedings were started after that date, in thestate of madhya pradesh, for alleged doing in that state......
Judgment:

Krishnan, J.

1. The petitioner who had been working as Sub-inspector of Police has come to this Court from the order ofthe Inspector General of Police dated 27-5-1958. He has alleged irregularities out of which 3 have been pressed.

(i) In the circumstances to be set out presently he argues that he was really an officer under the control of the Government of the State of Rajasthan and as such could not have been dismissed by the inspector General of Police in the State of Madhya Pradesh.

(ii) The inquiring officer Deputy Superintendent ot Police Afaq Hussain was prejudiced against him, being, in fact, the officer who had at the first instance asked the Circle Inspector to make a preliminary inquiry.

and (iii) His prayer for personal hearing at the punishment stage was not granted. Accordingly, the petitioner has asked under Article 226, a writ or direction by this Court setting aside of the order of 'dismissal and his reinstatement in service.

2. Delay. The petitioner was dismissed on 27-5-1958, the order itself being communicated to him on 3-6-1958. He filed an appeal to the Government which was dismissed on 29-12-1959. However, he filed the present petition about one year later on 9-1-1961, Naturally, the delay calls for explanation and there is none except that the petitioner noticed the Government for redress, which took a month or so and had in addition to brief a lawyer and prepare his case. In these circumstances, the delay is considerable and has remained unexplained. This by itself justifies the dismissal of the petition, even if there was substance in it.

3. The petition has, however, been heard on merits and our decision on the grounds may be set out briefly.

4. Ground No. 1. The petitioner's argument is that though he had been actually working in the State of Madhya Pradesh from the 1st of November, 1956 was for matters of discipline a servant of the Rajasthan Government It is not that he is an officer of the State of Rajasthan working on deputation in the State of Madhya Pradesh; there is, of course, no such deputation order. But it is urged that Sections 115 and 116 of the States Reorganisation Act notwithstanding, he was till the publication of the order of the Union Government in the Home Ministry No. 6/18/60-SR(s) dated 11th August 1960 an officer in the service of Rajasthan. That order runs,

'The Central Government hereby determine that persons who were provisionally required to serve in connection with the affairs of the State of Madhya Pradesh in the Government of India, Ministry of Home Affairs order No. 68/3/56-SR. II, dated 31st October 1956 and who are mentioned by name in column (1) and by official designation in col. (2) of the schedule below shall be finally allotted to serve in connection with the affairs of the State specified in col. (3) of the said schedule with effect from the 1st Nov. 1956.'

5. The facts are that immediately before the date appointed in the States Reorganisation Act 37 of 1956 he was working in Sironj, which at that time was partof the State of Rajasthan. However, on the 1st November 1956 it became part of the State of Madhya Pradeshin the District of Bhilsa. Thus under Section 115(2) of the States Reorganisation Act he continued to serve in connection with the affairs of the successor state which in the instant case was the State of Madhya Pradesh. The transfer orders made atter the 1st November, 1956 were by the Government in the Police Departmentof the Madhya Pradesh. The proceedings themselves were initiated by the Superintendent of Police Bhilsa on 14-8-1957. An inquiry was held after the usual service of charge-sheet and show cause notice by a Deputy Superintendent of Police name Shri Afaq Hussain. The report was submitted to the Inspector General of Police and the punishment notice was issued by him as also the order of dismissal. The argument is that the petitioner's service in the Madhya Pradesh was only provisional with the implication, that he was for purposes of service one working in the State of Rajasthan, and was in the Madhya Pradesh by a kind of notional deputation. This position according to the petitioner continued till 1960 when the order under Section 115(3) was made by the Central Government. No doubt, there was an earlier order of the 31st October, 1956, but that too was provisional.

6. The entire argument is fallacious in view of the provisions in Section 116(1) of the States Reorganisation Act:

'Every person, who immediately before the appointed day is holding or discharging the duties of any post or office. .....in connection with the affairs of anexisting State in any area which on that date falls within another existing State or a new part 'A' State shall. ....continue to hold the same post or office in the other existing State or the new part A State. ..... inwhich such area is included on that date and shall be deemed as from that day to have been duly appointed to such post or officer by the Government of or other appropriate authority in such State. ..... as thecase may be.'

Thus, notwithstanding the delay in the making of the order under Section 115(3) by the Union Government, for purposes of this case, the petitioner was a servant of the State of Madhya Pradesh from the 1st November 1956.

This is obvious as far as it goes. But the petitioner has cited the case Balakrishnan v. State of Madras, (S) AIR 1957 Mad 769 as authority for the proposition that in spite of the 'deeming' provision the officer will be one working in the original State. That rule seals with a set of facts quite different from the present one; but apparently the petitioner wants to read it in the reverse to support his contention. There, an officer working in an area that was part of the State of Madras began to work in another State by transfer of that area during the reorganisation of States with effect from 1-11-1956. But a few days before this on the 28th or 29th October, 1956 departmental proceedings had been started against him, and ultimately disposed of by the State of Madras at a time when the officer had come under The control of another State. The question was whether in these circumstances the authority in the State of Madras could punish him at a time when he was under the control of another State Government. On the strength of Section 116(2) of the Act the High Court held that the authority in the State of Madras was competent to do this. The argument seems to be that, since it was held that for the purposes of proceedings initiated while the officer was working in the State of Madras he was still under the jurisdiction of the authority in that State, the petitioner should be treated as continuing to be under the control of the State of Rajasthan. But we are not dealing with proceedings started against the officer in the State of Rajasthan before 1-11-1956; here the proceedings were started after that date, in theState of Madhya Pradesh, for alleged doing in that State. Therefore, Section 116(2) has no application. Section 116(1)is clear enough. There is, therefore, no substance in this ground.

7. Ground No. 2. The second ground is that the inquiry was vitiated because it was held by Shri Ataq Hussain, who took up the allegations against the petitioner, and at the first instance asked the Circle inspector to look into them. The question is whether or not it is fair and reasonable for an officer who first detected the alleged misconduct or irregularity himself to hold the departmental inquiry. As long as the officer who actually punishes is another, and he applies his own personal judgment to the results of the inquiry there may be little or no prejudice. There may be cases where a single superior officer has been dealing with the case throughout from the preliminary inquiry up to the awarding of the punishment, in which event prejudice may be quite patent. Whatever may be the general position, this ground is of no force in the instant case, because is was never raised before the inquiry by the petitioner himself. If indeed the petitioner thought that Deputy Superintendent Afaq Hussain was prejudiced against him, and it might be unfair for him to hold the inquiry, he should have represented to the Inspector General or other Superior Officer as soon as he got notice about the inquiry. In this case, he did not, and actually acquiesced and assisted in the inquiry. When the report turned out to be adverse, for the first time he made the allegation that Deputy Superintendent of Police Afaq Hussain was biased against him. Certainly this cannot be taken seriously.

8. Ground No. 3. Another ground advanced by thepetitioner is that he was refused a personal hearing even though he had asked for it. This again is based on a misunderstanding. He was, no doubt, personally present, and assisted during the inquiry. When the report went to the Inspector General he issued the usual noticeregarding punishment. The petitioner showed causeagainst punishment and further prayed that he might bepersonally heard on this also. It is difficult to see whatdifference it makes whether the cause against punishmentis shown in a petition, or is heard by the officer coming up in person and explaining his position, The situation is surely different when there is an inquiry on allegations; there personal presence can make all the difference, both in confronting the witnesses and in explaining the facts. But once the facts have been investigatedin the inquiry; and the problem is which of the alternative punishments would be fair and just in the circumstances, it makes no difference whatsoever whether theofficer affected comes in person or sends a written cause.Neither under Article 311 nor under the rules trained bythe Madhya Pradesh Government is a personal hearingat the stage of punishment a legal requirement. Inprinciple, even where something is not expressly providedin the statute or the rule, it may have to be given tothe party likely to be affected by the order, if on thegrounds of reasonableness or fair-play it will materiallyhelp him in making himself better understood by hissuperiors. But this is not the position here. This question came up before the Madhya Pradesh High Court inC. A. D'Souza v. State of Madhya Pradesh, 1962 Jab LJ97 : (AIR 1961 Madh-Pra 261); it was ruled that therefusal of a personal hearing at this stage is no irregularity or prejudice.

9. The result is that the petition is found to be without substance and is dismissed. Costs payable to opposite party Government Rs. 50/-. The balance, if any, out of the security may be refunded to him.


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